Kogarah City Council v El Khouri

The prosecutor appeals against the costs order 10The Council appealed to this Court under s 42(2B)(c) of the Crimes (Appeal and Review) Act 2001 against the order for costs made by the Local Court against the Council in the proceedings. An appeal under s 42(2B) is "only on a ground that involves a question of law alone". 11The written notice of appeal, lodged with the registrar of the Land and Environment Court, must state the general grounds of appeal (s 44(1) and (2) of the Crimes (Appeal and Review) Act). The Council's amended summons commencing the appeal stated the grounds of appeal to be: (1) The Court below erred at law in ordering the Prosecutor to pay the Defendants' costs in that by finding that the Defendants were put to costs of defending the charges, and suffered an emotional burden by the bringing of the charges, so that it was appropriate to make an order in their favour, the Court below: (a) Took into account an irrelevant consideration; (b) Failed to have regard to a relevant consideration, namely the 'polluter pays 'principle; or (c) Failed to direct herself in accordance with s 214(1)(d) of the Criminal Procedure Act 1986 as to what constitutes exceptional circumstances. (2) The Court below erred at law in ordering the Prosecutor to pay the Defendants' costs in that the Court failed to have regard to a relevant consideration, being the investigation properly carried out by the Prosecutor that resulted in admissions having being made by or on behalf of the Defendants. 12The appeal under s 42(2B) is in Class 6 of this Court's jurisdiction. The Court may determine an appeal against an order referred to in s 42(2B): (a) by setting aside the order and making such other order as it thinks just, or (b) by setting aside the order and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court, or (c) by dismissing the appeal (s 48(3) of the Crimes (Appeal and Review) Act).

The prosecutor's submissions on its grounds of appeal 13The Council's primary ground of appeal involving a question of law was that the Magistrate misdirected herself as to the test to be applied under and otherwise misinterpreted s 214(1)(d) of the Criminal Procedure Act. The Council put its argument in five ways. 14First, in oral argument, the Council submitted that s 214(1)(d) is directed to "the conduct of the proceedings by the prosecutor in the context of whether or not a fair hearing has occurred". The Council submitted that only if the conduct of the proceedings by the prosecutor involves or leads to a fair hearing can there by "exceptional circumstances" making it "just and reasonable" to award professional costs against the prosecutor. The Council relied on the statements of Pain J in Port Macquarie-Hastings Council v Lawlor Services Pty Ltd; Port Macquarie-Hastings Council v Petro (No 7) [2008] NSWLEC 75; (2008) 159 LGERA 87 as authority in support of this submission. In that case, Pain J said: "as identified in Halpin what should be considered is the conduct of the proceedings by the prosecutor and whether there was a fair hearing" (at [75]). She found that although the conduct of the prosecutor was unsatisfactory in a certain respect, it did not "lead to an unfair hearing" and it did "not amount to exceptional circumstances" (at [76]). 15The Council submitted that the Magistrate did not apply this test of whether the conduct of the proceedings by the prosecutor involved or lead to an unfair hearing and therefore failed to direct herself in accordance with s 214(1)(d). 16Secondly, the Council submitted in its written submissions that the Magistrate framed the question of applying s 214(1)(d) in terms of the result of the no case to answer submission. That result did not address itself to any conduct of the prosecutor and therefore the Magistrate failed to direct herself in accordance with s 214(1)(d). 17Thirdly, the Council submitted in its written submissions that the findings made by the Magistrate all concerned "a failure of preparation" by the prosecution. The Magistrate found that "if there had been a review of the elements of the offence in a timely way before the proceedings commenced ... it could have been easily observed that there was no evidence going to this particular element [the absence of a development consent or permit] that could be described as explicit". The Council submitted that a failure of preparation by the prosecutor before the proceedings commenced could not relate to "the conduct of the proceedings by the prosecutor". In this way, the Magistrate also misdirected herself. 18Fourthly, the Council submitted in its oral and written submissions that the conclusion expressed by the Magistrate, and the findings relating to that conclusion, did not explain how that conduct was "exceptional". The Magistrate concluded that the failure to prove the element of the offence of the absence of a development consent or permit was an exceptional circumstance but did not explain why it was exceptional in that particular case. 19Fifthly, the Council submitted in oral submissions that the Magistrate did not consider whether it was just and reasonable to award costs in the circumstances. The Council submitted that s 214(1)(d) requires the court to be satisfied not only that there are exceptional circumstances but also that they make it just and reasonable to award professional costs. The Council submitted that the Magistrate gave no actual consideration as to whether, by reason of the exceptional circumstances, it was just and reasonable to award costs. The Council submitted that the Magistrate failed to address the necessary question raised by s 214(1)(d). 20The Council's second ground of appeal was that the Magistrate took into account an irrelevant consideration, namely, that the defendants were put to costs and suffered an emotional burden in defending the charges. The Council submitted that this impact on the accused person could not be an exceptional circumstance relating to "the conduct of the proceedings by the prosecutor" within s 214(1)(d). 21The Council's third ground of appeal was that the Magistrate failed to have regard to a relevant consideration, namely the polluter pays principle. The Council submitted that where a person engages in some kind of activity that harms the environment, which leads the prosecutor to investigate and bring proceedings for an environmental offence, the person should bear the cost of investigation and prosecution, not the prosecutor. The Council submitted that the Magistrate failed to have regard to this matter. 22The Council's fourth and final ground of appeal was that the Magistrate failed to have regard to a relevant consideration, being the investigation by the prosecutor that resulted in admissions being made by the defendants that they had cut down the trees. The Council submitted that these admissions were relevant to whether the conduct of the proceedings by the prosecutor involved or led to an unfair hearing.

The defendants' submissions on the grounds of appeal 23In relation to the first ground of appeal, the defendants submitted that, on a fair reading of the Magistrate's reasons, the Magistrate did not misdirect herself or fail to address the correct tests raised by s 214(1)(d), in the five ways submitted by the Council. 24First, s 214(1)(d) should not be read as encompassing only conduct of the proceedings by the prosecutor that leads to an unfair hearing. That would be to put an unwarranted gloss on the words of s 214(1)(d). That is not the way in which Pain J stated the test in Port Macquarie-Hastings Council v Lawlor Services at [75]. Indeed, Pain J may have incorrectly transposed the comment of Hall J in Halpin v Department of Gaming and Racing [2007] NSWSC 815. The reference to a fair hearing was made in the context of making a costs order: the requirement that an order be just and reasonable involves both a fair hearing (the order has to be just in the way in which it was reached) and that the terms of the order finally made are reasonable. The hearing that must be fair is the costs hearing, not the hearing of the substantive proceedings for the offence. Pain J incorrectly transposed the reference to a fair hearing of the costs application to be a fair hearing of the substantive proceedings. 25Secondly, the defendants submitted that the Magistrate did not err in referring to the result of the no case to answer submission and the dismissal of the proceedings. Section 213 of the Criminal Procedure Act makes the accused person's success the first precondition to making a costs order in favour of the accused person. The defendants submitted that it was not irrelevant when applying s 214(1)(d) to have regard to the reasons and circumstances for the dismissal of the charges: see O'Brien v Hutchinson [2012] NSWSC 429 at [52]. The defendants further submitted that the Magistrate did not restrict herself to merely stating the result of the no case to answer submission, but rather framed the question to be answered by reference to the conduct of the prosecutor. The Magistrate referred to the failure of the prosecutor to prepare and adduce evidence on the particular element of the offence of the absence of a development consent or permit. 26Thirdly, the defendants submitted that although the Magistrate did refer to the failure of the prosecutor to prepare and to review the evidence on all of the elements of the offence before the proceedings were commenced, that failure continued after the proceedings had been commenced. For the prosecutor to actually proceed with the case up to the point of a no case to answer submission after a number of days of hearing was conduct of the proceedings and it was conduct that was exceptional within s 214(1)(d). So, although the Magistrate found that the genesis of this exceptional conduct was in the failure of preparation of evidence on all of the elements of the offence, it was clear that she considered that there was conduct of the proceedings by the prosecutor in not supplementing the evidence so as to address this element and in being prepared to proceed with and close its case with this deficit not addressed. The prosecutor's failure to identify, supplement and correct the absence of evidence on an element of the offence, leading from the failure of preparation, was conduct within the language of s 214(1)(d). 27Fourthly, the defendants submitted that the Magistrate did explain how this prosecutorial default was an exceptional circumstance. The word "exceptional" as used in s 214(1)(d) is of broad ambit, bearing its ordinary meaning of something out of the ordinary or unusual: Port Macquarie Hastings Council v Lawlor Services at [75] and Environment Protection Authority v Bulga (No 2) [2014] NSWLEC 70; (2014) 202 LGERA 203 at [76] referring to [30]. The defendants submitted that the Magistrate did explain why the prosecutor's conduct in failing to prepare and adduce evidence on all elements of the offence was exceptional in this sense. The prosecutor's conduct failed to accord with the ordinary conduct and serious responsibility of a prosecutor to prepare and review the evidence on all of the elements of the offence. 28Fifthly, the defendants submitted that the Magistrate did not conflate the two limbs of s 214(1)(d) of finding an exceptional circumstance relating to the conduct of the proceedings by the prosecutor and finding that it was just and reasonable to award professional costs because of that exceptional circumstance. The reasons the Magistrate gave addressed both the exceptional circumstances limb and the just and reasonable limb. 29In relation to the prosecutor's second ground of appeal, the defendants submitted that the fact that the criminal proceedings imposed an emotional and financial burden on the accused persons was not an irrelevant consideration, being one that the Criminal Procedure Act by its words (including in s 214(1)(d)) or its scope, object and purpose proscribed the Local Court from considering in its costs determination. Insofar as criminal proceedings impose a financial burden, that fact cannot be irrelevant as the whole purpose of ss 213 and 214 of the Criminal Procedure Act is to allow the awarding of costs in certain circumstances to compensate an accused person who has been put to the financial cost of defending a prosecution that has been dismissed or withdrawn. The defendants submitted that, applying the principles in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-41, it is clear that the financial burden of an abortive prosecution of a defendant and the associated and antecedent need to incur those costs to avoid the stigma of criminal conviction (with its associated emotional burden) cannot properly be considered to be an irrelevant consideration that the Criminal Procedure Act prevents the Local Court from considering. 30The defendants also submitted that the Magistrate's reference to the emotional burden was not material to her ultimate costs determination, but rather was made in the course of explaining the standard required of prosecutors coming to the Local Court in alleging serious offences such as those with which the defendants were charged and which carry high maximum penalties. 31In relation to the prosecutor's third ground of appeal, the defendants submitted that the polluter pays principle neither was a mandatory relevant consideration that the Local Court was bound to take into account in any costs determination nor had any possible application to this costs dispute as the charges had been dismissed (and hence the defendants were not found to be polluters who ought to pay). 32In relation to the prosecutor's fourth ground of appeal, the defendants submitted that the admissions in the records of interview that were excluded at the trial were not mandatory relevant considerations that the Criminal Procedure Act required the Court to consider in its costs determination. Moreover, they were of no assistance to the prosecutor in arguing against a costs order on the ground found by the Magistrate to be an exceptional circumstance making it just and reasonable to award professional costs. The admissions in the excluded records of interview did not concern the critical element of the offence of the absence of a development consent or permit, but rather went to other elements of the offence. Hence, consideration by the Magistrate of the admissions in the excluded records of interview would have made no difference to the Magistrate's costs determination.

The appeal should be dismissed 33I find that the Council has not established any of its grounds of appeal that the Magistrate's costs decision was erroneous on any question of law. My reasons are essentially the reasons advanced by the defendants and summarised above. 34In relation to the first ground, on a fair reading of the Magistrate's reasons, she did not misdirect herself or fail to apply the correct tests under s 214(1)(d) in any of the ways contended for by the Council. 35First, the "circumstances relating to the conduct of the proceedings by the prosecutor" that can be "exceptional" are not restricted to those that lead to an unfair hearing. Such a restriction is not demanded by the actual words in s 214(1)(d) or their context. Pain J did not hold to the contrary in Port Macquarie-Hastings Council v Lawlor Services, in saying "as indicated in Halpin what should be considered is the conduct of the proceedings by the prosecutor and whether there was a fair hearing". Three points need to be noted about this statement. First, the reference to a fair hearing is stated as a cumulative consideration to the conduct of the proceedings by the prosecutor, not as constituting the conduct in itself, or by being a required consequence of the conduct. Hence, the statement does not provide support for the Council's submission that in order for the conduct of the proceedings by the prosecutor to be exceptional, it must involve or lead to an unfair hearing. Secondly, insofar as the statement seeks to add, as a mandatory relevant consideration under s 214(1)(d), the matter of whether there was a fair hearing, there is no textual or contextual support in s 214(1). Thirdly, Halpin did not identify the matter of whether there was a fair hearing as a mandatory relevant consideration under s 214(1)(d) or its equivalent s 257D(1)(d) of the Criminal Procedure Act. In Halpin Hall J said (at [65] and [66]): The expression "exceptional circumstances" is a broad one. Without it being necessary to define its outer limits, the question essentially is whether or not there was any relevant conduct by the prosecutor which would make it "just and reasonable" to award costs in favour of the plaintiff. In Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552; 78 A Crim R 368, the Court of Criminal Appeal determined that the requirement that an order be "just and reasonable" involves both a fair hearing and that the terms of the order finally made are reasonable, per Sully J at 561:- '...the words of the section require that an order for the payment of costs pursuant to s.52 of the [Land and Environment Court Act 1979] must be both just and reasonable. The order must be just in terms of the way in which it has been reached; and it must be reasonable in its actual terms.' 36The reference to a fair hearing was to the hearing of the application for the costs order. The requirement in the costs provision considered in the Caltex Refining case was that any costs order made must be just and reasonable. In order for the costs order to be just, the way in which it has been reached must be just and that requires that there be a fair hearing of the application for costs. 37Hall J did not say that the conduct of the substantive proceedings for the offence, which had been dismissed or withdrawn, must involve a fair hearing. Indeed, that would be inconsistent with the terms of s 214(1)(d) or s 257D(1)(d) because it could hardly be said to be just and reasonable to award professional costs against the prosecutor if the prosecutor's conduct of the proceedings for the offence did involve a fair hearing. 38Hence, the Council's submission that the Magistrate did not address the correct question by considering whether the conduct of the proceedings by the prosecutor led to an unfair hearing is incorrect. 39Secondly, contrary to the Council's submissions, the Magistrate did not refer only to the result of the finding that there was no case to answer and the dismissal of the proceedings. Of course, that result was a necessary precondition to the defendants being able to make a costs application. However, the Magistrate expressly observed that: "not in every case does the fact that the prosecutor has failed to succeed in its case ... lead to an order for costs. There has to be an exceptional circumstance and it has to appear that it's just and reasonable to award the professional costs". The Magistrate therefore clearly and correctly directed herself that she needed to find an exceptional circumstance relating to the conduct of the proceedings by the prosecutor other than the result of the finding of a no case to answer and the dismissal of the proceedings. 40Thirdly, the Magistrate did not restrict herself to considering only the prosecutor's failure of preparation before the commencement of the proceedings. The proceedings were dismissed only after the Magistrate found that there was no case to answer at the close of the prosecutor's case at the trial. The basis on which the Magistrate found that there was no case to answer was that the prosecutor had failed to prove on the evidence it adduced in its case at the trial the element of the offence that there was no development consent or permit authorising the cutting down of the trees. This was a failure of the prosecutor in the conduct of the proceedings. The genesis of that failure to prove at the trial that element of the offence, the Magistrate found, was the "failure of preparation by the prosecution". However, that failure of preparation before the proceedings were commenced was never cured after the proceedings were commenced. The prosecutor ran its case at the trial without adducing evidence proving that there was no development consent or permit to cut down the trees. It was this conduct of the proceedings by the prosecutor that the Magistrate found was the exceptional circumstance. 41Fourthly, the Magistrate did explain why this conduct of the prosecutor in failing to adduce evidence to prove the element of the offence was an exceptional circumstance. She did so by reference to the fundamental duty of the prosecutor to adduce sufficient evidence of the offence. The Magistrate explained that it is a serious responsibility for a local council to prosecute serious environmental offences which carry significant penalties. It is a serious responsibility because the local council effectively represents the community in enforcing Parliament's laws by prosecuting for offences against the laws and because bringing people before the court to answer the offences charged imposes a burden on them, both emotionally and financially. Because of this serious responsibility, the prosecutor had a duty to prepare and review the evidence on all of the elements of the offence before the proceedings were commenced but also, if proceedings are commenced, to prove each element of the offence. To fail to discharge this fundamental prosecutorial duty to adduce evidence proving each of the elements of the offence is an exceptional circumstance. The Magistrate referred to it as "a professional matter". It was not a failure of particular witness. The Magistrate's reasons were adequate to explain why the conduct of the prosecutor to adduce any evidence on an element of an offence was an exceptional circumstance. 42Fifthly, the Magistrate did consider the requirement that it be "just and reasonable" to award professional costs and gave reasons for so finding. The Magistrate at the outset of her judgment expressly referred to and quoted the terms of s 214(1)(d) and then noted that "there has to be an exceptional circumstance and it has to appear that it's just and reasonable to award the professional costs". The Magistrate then discussed the circumstances relating to the conduct of the proceedings by the prosecutor. At the end of her reasons for judgment, the Magistrate concluded: "I am satisfied that it is an exceptional circumstance, and it is just and reasonable to award professional costs, and I propose to make an award for professional costs against the council in favour of each accused". Accordingly, the Magistrate clearly turned her mind to the requirement of s 214(1)(d) that it be just and reasonable to award professional costs. 43The Magistrate's reasons for finding that it was just and reasonable overlapped with the reasons the Magistrate gave for finding that the circumstances relating to the conduct of the proceedings by the prosecutor were exceptional. No error of law was involved in the Magistrate relying on the same circumstances relating to the conduct of the proceedings by the prosecutor for the finding that the circumstances were "exceptional" as well as for the finding that, because of those exceptional circumstances, it was "just and reasonable" to order costs. 44Indeed, s 214(1)(d) requires this link. The Court must be satisfied that it is just and reasonable to award professional costs because of the exceptional circumstances relating to the conduct of the proceedings by the prosecutor. In this case, the Magistrate found that it was the conduct of the prosecutor in failing to adduce evidence to prove a particular element of the offence that was the exceptional circumstance and that, because of that exceptional circumstance, it was just and reasonable to award professional costs. In so doing, the Magistrate applied the correct test under s 214(1)(d). 45In relation to the second ground of appeal, the Magistrate did not err on a question of law by considering the financial or emotional burden on the defendants by the bringing of the charges. The financial or emotional burden was not a mandatory irrelevant consideration under s 214(1)(d), with the consequence, that consideration of it could not involve an error on a question of law. It was also but an explanation for the Magistrate's statement that the prosecutor had a serious responsibility in prosecuting an offence and a duty to adduce evidence on each element of the offence. It was not material to the ultimate costs determination. 46In relation to the third ground of appeal, the Magistrate did not err on a question of law by not considering the polluter pays principle. The polluter pays principle is one of the principles of ecologically sustainable development. It holds that those persons who cause environmental harm, such as pollution and waste, should bear the costs of containment, avoidance or abatement. Where a person who causes environmental harm - the polluter - is prosecuted and convicted of an environmental offence, the polluter should be made to bear, by the penalties and orders made, those costs, including the professional costs of the prosecutor in prosecuting the polluter. However, the concept of the polluter pays principle has no application if the prosecution is unsuccessful. The person charged would not have been proven guilty of having committed the environmental offence charged. In short, the person has not been proven to be a polluter. There is no warrant for a person who is not proved to be a polluter to be ordered to pay the costs of the prosecution. The polluter pays principle was not applicable in this circumstance. The Magistrate did not err in not considering the principle in this case. 47In relation to the fourth ground of appeal, the Magistrate did not err on a question of law in not considering the admissions of the defendants in the records of interview that were excluded at the trial. Those admissions related to the elements of the offences charged other than the element of the absence of a development consent or permit authorising the cutting down of the trees. The Magistrate determined to award costs against the prosecutor only on the basis of the prosecutor's conduct in failing to adduce evidence on the element of the absence of a development consent or permit. Hence, even if the Magistrate had considered the admissions in the records of interview, it would not have had any effect on the Magistrate's decision to award costs. 48Moreover, there was no legal requirement to consider the admissions in making the costs determination. They were not mandatory relevant considerations under s 214(1)(d), either by express words or having regard to the subject matter, scope and purpose of the provision. 49The Council submitted that they were only relevant to be considered for the purpose of determining whether there had been a fair hearing. However, this submission was based on the erroneous argument that, to be an exceptional circumstance, the conduct of the proceedings by the prosecutor must involve or lead to an unfair hearing. That argument is erroneous for the reasons I have given earlier.

Conclusion 50The Council has not established that the Magistrate's costs decision is in error on any question of law. The Council's appeal should therefore be dismissed. The parties agreed that, in the event of the Council's appeal being dismissed, costs should follow the event. The appellant should pay the defendants' costs of the appeal. 51The Court orders: (1)The appeal is dismissed. (2)The appellant is to pay the respondents' costs of the appeal.

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 December 2014