Lismore City Council v Ihalainen

THE COSTS LEGISLATION

1. Section 257C(1) of the Criminal Procedure Act 1986 empowers a court to order costs against a prosecutor at the end of proceedings, if the matter is dismissed or withdrawn: A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.
2. Reflecting the fact that a prosecutor acts in a public capacity in prosecuting charges, this power to award costs is heavily constrained by s 257D(1) which prohibits an award of costs against a prosecutor unless the defendant satisfies the Court as to one or more of four specified matters (Wollongong City Council v Ensile Pty Ltd (No 9) [2008] NSWLEC 248 at [6]; Environment Protection Authority v Bulga Coal Management Pty Ltd (No 2) [2014] NSWLEC 70, 202 LGERA 203 at [6]): Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.
3. The defendant relies on a number of these subsections. The defendant relies upon findings made in the principal judgment, on certain parts of the evidence and transcript, and on certain documents tendered on the costs application.
4. The prosecutor submits that costs should not be ordered as the defendant cannot satisfy the legal and factual burden justifying a costs order.

The withdrawn charge 18

1. Long before trial, the defendant contended in writing that charges 17 and 18 were two charges in respect of one offence, differing only in particulars, and offended the principle of double jeopardy; and indicated that the defendant proposed to require the prosecution to elect as between charges 17 and 18 and would seek his costs in relation to the application and any proceedings discontinued or discussed.
2. The double jeopardy contention appears to have been well founded: Pearce v The Queen [1998] HCA 57, 194 CLR 610 at [9]-[33].
3. In a letter of reply, the prosecution contended that the defendant could be convicted of both charges.
4. In withdrawing charge 18 at the commencement of the trial, the prosecutor said he had taken a pragmatic view and had considered legal argument put by the defendant.
5. The defendant submits that therefore the Court should be satisfied that charge 18 constitutes proceeding initiated without reasonable cause within s 257D(1)(b) of the Criminal Procedure Act.
6. The prosecutor submits, and I accept, that: first, charges 17 and 18 were pressed as alternatives and with no intention by the prosecutor of seeking a conviction in relation to both charges, as was made plain in the prosecutor's opening written submissions filed and served shortly before trial; secondly, the prosecutor's evidence addressed both subclause (a) and (b) of the definition; and thirdly, the ultimate decision to withdraw charge 18 was to confine the issues in dispute and save Court time, and no evidence prepared up to that time was wasted as a result of the withdrawal.
7. In the circumstances, I am not satisfied that because of an assertion in the earlier letter from the prosecutor that the defendant could be convicted on both charges, the proceedings were initiated without reasonable cause. Alternatively, I am not satisfied that in the circumstances the discretion to order costs should be exercised.

s 257D(1)(a): charge 17

1. The defendant submits, first, that the investigation into the alleged offence was conducted in an unreasonable or improper manner within the meaning of s 257D(1)(a) of the Criminal Procedure Act.
2. An investigation which fails to meet optimum standards is not necessarily unreasonable. The test is objective and does not necessarily impugn the general competence or integrity of those responsible for the investigation: J D v DPP [2000] NSWSC 1092 at [30]-[31]; Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21, 165 LGERA 6 at [7], [15(d)].
3. The defendant submits that the investigation was conducted in an unreasonable or improper manner because of gross deficiencies in the conduct of the inspection and sampling undertaken on 27 June 2012, references to which punctuate the findings in the principal judgment at [136]-[169].
4. I entertained reasonable doubt about the evidence of onsite unusual observations. Mr Bailey's observation was that he saw sediment-laden water enter the creek, on which he was not directly cross-examined. That evidence does not suggest an unreasonable or improper investigation. There was no bad faith nor any impropriety on the part of Mr Bailey, who was simply doing his job as a Council compliance officer. The fact that there was no photograph of the sediment-laden water at its alleged confluence with creek does not mean that his investigation was unreasonable. The water sampling by Mr Bailey found to be unreliable was put forward by the prosecution as a backup to his visual observations; the latter comprised the principal basis of the prosecution case. Mr Bailey could have done a better job by taking further water samples and documenting his observations as he took the samples, but I do not think that sufficient to attract an adverse costs order. The defendant's no case submission at the end of the prosecutor's case did not extend to the water pollution case. In the circumstance, I am not satisfied that for the submitted reason the investigation was conducted in an unreasonable or improper manner or, alternatively, that the discretion to order costs should be exercised.
5. The defendant then submits that the investigations were conducted in an unreasonable or improper manner within the meaning of s 257D(1)(a) because the investigators failed to take any contemporaneous notes and, in the case of Mr Bailey, he prepared a memorandum to file some months after the date that it bore, which he subsequently amended.
6. It would have been better if Mr Bailey had made contemporaneous file notes, however he did take photographs to record his on-site observations. The fact that he prepared a file note a few months after the event was not "improper" not "unreasonable". I do not accept the defendant's submission.
7. The defendant then submits that the investigation was conducted in an unreasonable or an improper manner within the meaning of s 257D(1)(a) because, as I found at trial, the POEO Act record of interview of the defendant on 26 September 2012 was obtained improperly.
8. At the start of the trial the defendant made two challenges to the prosecutor's evidence. The first challenge was that Mr Bailey was not an expert for the purposes of the Evidence Act 1995. The second challenge was that the record of interview with the defendant was conducted improperly under s 138 of the Evidence Act. The first challenge was determined in favour of the prosecutor. The second challenge was determined in favour of the defendant. It seems appropriate that both parties should bear their own costs of the voir dire. Further, the record of interview was not admitted into evidence on the basis of a failure to adequately caution the defendant under s 138 of the Evidence Act. However, Mr Bailey did attempt the caution required by law. The interview was conducted in good faith and for a proper purpose and did not involve any element of bad faith. The failure to properly caution falls short of the conduct required to trigger the threshold in s 257D of the Criminal Procedure Act. For these reasons I do not accept the defendant's submission.

s 257D(1)(b): charge 17

1. The defendant submits that the proceedings were initiated without reasonable cause within the meaning of s 257D(1)(b).
2. Failure of proceedings does not, of itself, mean they were initiated without reasonable cause: A1 Professional Tree Recycling at [10], [14] and [15(a)]. One way of testing whether they were initiated without reasonable cause is to ask whether, objectively assessed on the facts apparent to the prosecutor at the time of initiating the proceedings they had no substantial prospect of success or were doomed to failure. The question may be answered by reference to the quality of the evidence gathered, with an eye to the enquiries made and not made: A1 Professional Tree Recycling at [13] and [15(e)]; J D v DPP at [28].
3. The defendant submits that the proceedings were initiated without reasonable cause because the investigation was substandard for the reasons that I have earlier addressed, such that they had no substantial prospect of success. This is said to be because the investigation failed to procure reliable evidence of change to the physical condition of the creek waters by runoff from the fire trail, and the investigators took no contemporaneous notes and gave inconsistent versions of events.
4. Detailed cross-examination by senior counsel for the defendant was instrumental in my entertaining a reasonable doubt about the standard of the investigation. I accepted Mr Bailey's evidence of water overtopping the fence and heading towards the creek. However, I found that his evidence was compromised by the absence of, inter alia, photographs and contemporaneous notes. In the circumstances, I do not accept the defendant's submission.
5. The defendant then submits that the proceedings were initiated without reasonable cause because, even assuming water pollution had been established, it was principally as a result of Mr Bailey's stop-work notice of 1 June 2012 and his subsequent refusal to lift it, and it should be inferred that Council did not consider the causal significance of the stop-work notice when initiating the proceedings.
6. The charge was based in part on the premise that the defendant caused the pollution as the occupier of the premises. I found that he was not an occupier within the statutory concept because his management and control of the premises was taken away from him by the stop-work notice. On the other hand, sediment control fences were not the subject of the stop-work notice. Photographs showed sediment fences that had fallen down, with sediment build-up and sediment-laden water flowing over them. I made no finding that the work that the defendant was prevented from undertaking would have resulted in no pollution at all. In the circumstances, I do not accept the defendant's submission.
7. The defendant then submits that the proceedings were initiated without reasonable cause because Council initiated the proceedings without properly considering the matters identified in its own Corporate Enforcement Policy. The defendant relies on the fact that the prosecutor has not produced any document showing any consideration of the circumstances which that policy calls for consideration, other than a document entitled "Courses of Actions Available for Road Constructions" created by Mr Bailey, which does not mention POEO Act charges and (the defendant submits) consideration of matters which should have been taken into account before initiating those charges.
8. The policy does not compel the creation of a written document to demonstrate that the policy has been considered. It states that its aim is to establish key guidelines for the exercise of discretion in dealing with actions, requests or complains about unlawful activity. There is no case authority which attaches significance for consideration of such a policy prior to the commencement of Class 5 criminal proceedings in this Court. Mr Bailey was not cross-examined about his decision to take such proceedings. In all the circumstances, I do not accept the defendant's submission.

s 257D(1)(b): charge 17

1. The defendant submits that the proceedings were conducted in an improper manner within the meaning of s 257D(1)(b) of the Criminal Procedure Act by reason of failure to disclose nine relevant affidavits sworn by prosecution witnesses until the third day of the trial.
2. The affidavits should have been disclosed. The prosecutor's submissions record the unreserved apology of the Council's solicitor for the late disclosure of the affidavits. Given the principle that costs are compensatory and not punitive, the failure to disclose does not, in my opinion, sound in any adverse costs consequences.

s 257D(1)(c): charge 17

1. The defendant submits that the prosecutor unreasonably failed to properly investigate relevant matters of which it was aware which suggested the defendant might not be guilty or that the proceedings should not have been brought within the meaning of s 257D(1)(c) of the Criminal Procedure Act. The defendant relies on the fact that it served on the prosecutor six months before the trial statements of evidence of experts raising matters which, the defendant submits, seriously called into question the viability of the prosecution case and whether the charges should have been brought. The defendant contends that the prosecutor failed to properly investigate those matters and, in its statutory response, rejected the positions put by the experts. The defendant says that it is to be inferred that the prosecutor failed to properly investigate those matters.
2. In my view it was reasonable for the prosecutor to advance a case relying on its expert evidence. The defendant, as he was entitled to do, declined to agree to a suggestion that the experts participate in joint conferencing. There can be no criticism of the defendant for this but it does demonstrate the different nature of criminal proceedings compared with civil proceedings in this Court where joint conferencing routinely identifies matters upon which the experts agree and disagree and the reasons for disagreement. I am not satisfied that it has been established that the prosecutor failed to reasonably investigate as alleged by the defendant.

s 257D(1)(d): charge 17

1. In the alternative, the defendant submits that the issuing of the stop-work notice and the breach of the duty of disclosure (referred to earlier) each constitutes an exceptional circumstance relating to the conduct of the prosecution which justifies an order for costs pursuant to s 257D(1)(d). If these matters have not already been disposed of earlier, then substantially for the reasons given earlier when considering them on other statutory bases, I decline to order costs on this basis.

INTERLOCUTORY APPLICATION RESERVED BY SHEAHAN J 12 JULY 2013

1. On 12 July 2013 the defendants successfully applied to the Court an order that the prosecutor provide a hard copy of its enforcement file to the defendant.
2. The prosecutor had agreed to provide a soft copy of the file to the defendant. Sheahan J makes no adverse finding about the manner in which the prosecutor proposed to provide access to its enforcement file. The prosecutor was simply ordered to provide a hard copy. It might be thought that the prosecutor's position was not unreasonable having regard to what is now an accepted practice of providing discovery in electronic form. In my opinion, no provision of s 257D of the Criminal Procedure Act is enlivened. I do not accept the defendant's submission.

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: 13 April 2015