Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro

FILE NUMBER(S) : 50031 of 2006, 50006 of 2007

Costs :- class 5 criminal proceedings - Criminal Procedure Act 1986 - whether prosecutor acting in a private or public capacity - whether proceedings commenced without reasonable cause - whether prosecutor unreasonably failed to investigate any relevant matter - whether there were exceptional circumstances - whether partial costs order appropriate KEY ISSUES: Costs :- class 5 criminal proceedings - certificate under Costs in Criminal Cases Act 1967 - whether it was reasonable for prosecution to commence proceedings

Constitution Act s 51 Constitution (Local Government) Amendment Act 1986 Costs in Criminal Cases Act 1967 s 2, s 3 Crimes (Appeal and Review) Act 2001 s 70 Criminal Procedure Act 1986 s 14, s 48, s 49, s 117, s 173, s 174, s 214, s 246, s 257A, s 257C, s 257D, s 257E LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 125 Hastings Local Environmental Plan 2001 cl 20 Hastings Tree Preservation Order 2003 Justices Act 1902 s 41A, s 81, s 125(3) Land and Environment Court Act 1979 s 41 Local Government Act s 684, s 694 Noxious Weeds Act 1993

Acuthan v Coates (1986) 6 NSWLR 472 Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Nestle Australia Limited (2005) 146 IR 379 Bostik (Australia) Pty Limited v Gorgevski (No 2) (1992) 36 FCR 439 Canceri v Taylor (1994) 123 ALR 667 Castlebar Holding Pty Ltd v Riley (2005) 138 LGERA 338 Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 Cumberland v Department of Public Prosecutions & Anor (Hulme J, NSWSC, 7 June 1996, unreported) Eslarn Holdings v Tumut Shire Council (No 3) [1999] NSWLEC 163 Fosse v DPP & Anor [1999] NSWSC 367 Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 Halpin v Department of Gaming and Racing [2007] NSWSC 815 Hatchett v Bowater Tutt Industries Pty Limited (No 2) (1991) 28 FCR 324 JD v Director of Public Prosecutions & Ors [2000] NSWSC 1092 Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 Latoudis v Casey (1990) 170 CLR 534 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 CASES CITED: Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 Morrison v Defence Maritime Services Pty Ltd, Coates & Mahon [2007] NSWLEC 552 Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 Newcastle City Council v Pace Farm Egg Products Pty Ltd [No3] [2005] NSWLEC 423 Nilsen v Loyal Orange Trust (1997) 76 IR 180 Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro (No 6) [2007] NSWLEC 567 R v Dunne (Hunt J, 1NSWSC, 7 May 1990, unreported) R v Johnston [2000] NSWCCA 197 R v McFarlane (Blanch J, NSWCCA, 12 August 1994, unreported) R v Manley [2000] 49 NSWLR 203 R v Pavy (1997) 98 A Crim R 396 R v Williams; ex parte Williams [1970] 1 NSWR 81 Ramskogler v Director of Public Prosecutions & Anor (1995) 82 A Crim R 128 Regina v Ahmad [2002] NSWCCA 282 Regina v Hatfield [2001] NSWSC 334 Regina v Moore; ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 Sasterawan v Morris [2007] NSWCCA 185 Spotless Services Australia Limited v Marsh SDP [2004] FCAFC 155 Treasurer in & for the State of New South Wales v Wade & Dukes (Mahoney JA, NSWCA, 16 June 1994, unreported)

DATES OF HEARING: 20 November 2007 19 December 2007

PROSECUTOR Mr I Hemmings SOLICITOR LEGAL REPRESENTATIVES: Donovan Oates Hannaford FIRST AND SECOND DEFENDANTS Mr T Hale SOLICITOR Falvey Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50031 of 2006, 50006 of 2007 Port Macquarie - Hastings Council v Lawlor Services Pty Limited, Port Macquarie - Hastings Council v Petro (No 7)

JUDGMENT ON FINAL COSTS 1 Her Honour: In Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro (No 6) [2007] NSWLEC 567 (Port Macquarie (No 6)) I dismissed the respective charges against the two Defendants. Both Defendants now seek their legal costs under s 257C of the Criminal Procedure Act 1986 (the CP Act) which applies in this Court by virtue of s 41 of the Land and Environment Court Act 1979 (the Court Act) and, in the alternative, a certificate under the Costs in Criminal Cases Act 1967 (the Costs Act). 2 Both Defendants were charged with an offence under s 125 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that between approximately 1 July 2006 and 8 August 2006 the Defendants caused trees at Lot 186 DP754405 Herons Creek Road, Herons Creek NSW (the property) to which the Hastings Tree Preservation Order 2003 (the TPO) applied to be destroyed contrary to the provisions of cl 20 of the Hastings Local Environmental Plan 2001 (the LEP). 3 The particulars specified in both summonses are: The Defendant caused the destruction through the use of a bulldozer of at least 1000 trees spread over a 28 hectare area of the Property without development consent or the permission of Port Macquarie-Hastings Council.

4 Mr Lindsay was the person who drove the bulldozer and knocked over the trees the subject of the charges. He gave evidence for the Prosecutor. The charges were based on establishing that a joint criminal enterprise existed between Mr Lindsay and Mr Petro. These prosecutions were the first time such a basis for guilt had been pursued for strict liability offences in this Court (and possibly in Australia). In the primary judgment I found Mr Petro not guilty of the charges. The liability of Lawlor Services Pty Ltd depended on Mr Petro being found guilty. As he was found not guilty it followed that Lawlor Services Pty Limited was also found not guilty. (i) Criminal Procedure Act 1986 (CP Act) 5 Costs can be awarded to a defendant in criminal proceedings under s 257C of the CP Act which provides: 257C When professional costs may be awarded to accused person (1) 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) The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G. (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if:

(a) the accused person is discharged as to the offence the subject of the proceedings, or … 6 Where proceedings are taken by a prosecutor acting in a public capacity, the award of costs under s 257C is limited by s 257D which provides: 257D Limit on award of professional costs against a prosecutor acting in a public capacity (1) 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. (2) This section: (a) does not apply to the awarding of costs against a prosecutor acting in a private capacity, and . . .

7 These provisions are within Chapter 4, Part 5 (Summary Jurisdiction of Supreme Court and Other Higher Courts), Division 4 (Costs) commenced on 13 July 2006. The parties agreed that these provisions came into effect before the proceedings were commenced and therefore constitute the relevant costs regime for the purposes of this application.

(ii) Costs in Criminal Cases Act 1967 (the Costs Act) 8 A separate regime for the award of costs in criminal proceedings is set out in the Costs Act. This is sought in the alternative by the Defendants and only arises if their claims under s 257C are unsuccessful. As the case law referred to in relation to s 257C and D of the CP Act concerned applications under the Costs Act I will set out the relevant provisions now. 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or … 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. I note that (b) is not relevant to the arguments in this case. Claim under s 257C of the CP Act (a) Application of s 257D - Was the Council acting in a public or private capacity? Defendants' submissions 9 The Defendants presented one set of submissions. The Defendants argued that the prosecution was taken in a private capacity by the Prosecutor and consequently the limitations on the amount of costs against a prosecutor in s 257D do not apply. They submitted that costs should therefore be awarded in their favour under s 257C. 10 Their submissions as to why the Prosecutor acted in a private capacity are based on the provisions and structure of the CP Act. "Public officer" is relevantly defined in s 3 of the CP Act to mean an employee in the public service or the police service, officers and employees of bodies representing the Crown, an employee of the Council within the meaning of the Local Government Act 1993 (LG Act), the Director of Public Prosecutions and associated officers as well as officers and employees declared by the regulations. "Prosecutor" is defined as: prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor.

11 The Council prosecuting in its own name is not a public officer nor is it an entity which has power to commence a public prosecution in the sense referred to in the CP Act. No express provision of any Act conferred on the Council a right to prosecute for the offences charged. 12 "Private" prosecutions are accommodated in the CP Act by the common informer provision in s 14 which provides: 14. Common Informer A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons. 13 Section 14 has the purpose of controlling persons other than police or public officers to ensure that members of the public are not vexed by private prosecutions which have no proper basis in law, by requiring the Court to ensure that the prosecution has a basis in law: Sasterawan v Morris [2007] NSWCCA 185 at [22].

14 The Defendants' counsel referred to the structure of the CP Act. Ch 3 concerns procedures for indictable offences. Section 49 refers specifically to the commencement of private prosecutions. It provides that if a person other than a police officer, or public officer authorised under s 14 or under any other law to commence committal proceedings, commences a prosecution then they are to be commenced in a certain form. The Prosecutor in the present case has no power to commence committal proceedings under the Act. Section 117 (limit on circumstances where costs may be awarded against a public officer) specifies the circumstances in which costs may be awarded against a public officer in favour of an accused person. That section does not apply to prosecutors acting in a private capacity. There are similar provisions in Ch 4 in relation to summary offence procedures in s 174 (same as s 49) and s 214 (same as s 117). That structure also applies to Pt 5 Div 4 (Summary jurisdiction of Supreme Court and other higher courts) as prosecutor and public officer are defined under the CP Act as identified above.

15 In the context of the CP Act as a whole, the two prosecutions were not "public" prosecutions in the sense recognised by the CP Act. The Council was acting in a private capacity for the purposes of the costs provisions in s 257D of the CP Act and it does not apply. Accordingly costs should be awarded to both Defendants under s 257C and in accordance with the principles in Latoudis v Casey (1990) 170 CLR 534. Prosecutor's submissions 16 The Prosecutor submitted that the Council as a local government body empowered under the LG Act to commence prosecutions was acting in a public capacity. Support for this approach is found in Castlebar Holding Pty Ltd v Riley (2005) 138 LGERA 338. Further, the onus was on the Defendants to establish otherwise. Consequently, s 257D applies. Finding on whether Council undertaking public prosecutions 17 As identified by the Defendants, in the CP Act the provisions in Ch 3 (Indictable procedure) Pt 2 (Committal proceedings) Div 1 (Commencement of proceedings), s 48 and s 49, and Div 7 (Costs) s 117, and Ch 4 (Summary procedure) Pt 2 (Trial procedure in lower courts) Div 1 (Commencement of proceedings), s 173 and s 174 and Div 4 (Costs) s 214 are similar. These provide for the commencement of private and public prosecutions by an individual informant. Both chapters also contain provisions which provide that costs may be awarded against a prosecutor. Such an order is able to be made in limited circumstances under s 117 and s 214 if the prosecutor acts in a public capacity. These sections are in very similar terms to s 257D in Ch 4 Pt 5 Div 4 (Costs). 18 Chapter 4 Pt 5 (Summary jurisdiction of Supreme Court and other higher courts) Div 2 concerns appearances of accused persons in superior courts including this Court. There is no equivalent section to s 49 or s 174 in Pt 5 Div 2. Section 246 concerns the commencement of proceedings in this Court, inter alia, and is in different terms to Ch 3 Pt 2 Div 1 s 48 (commencement of proceedings by police officer or public officer), s 49 (commencement of private prosecutions), and the equivalent sections in Ch 4 Pt 2 s 173 and s 174. It identifies the required procedure for a prosecutor to commence proceedings by applying to the Court for an order seeking the appearance of an accused person. 19 Local councils are empowered by s 684(a) of the LG Act to pursue prosecutions in the name of the council. The distinction between the commencement of public and private prosecutions found in Ch 3 Pt 2 Div 1 (s 48 and s 49) and Ch 4 Pt 2 Div 1 (s 173 and s 174), and relied on by the Defendants' counsel, is absent in Ch 4 Pt 5. Given that the prosecutor in this case is empowered to commence proceedings in its own name under the LG Act and clearly must be acting in a public capacity in doing so, on one view the reference to "prosecutor" in s 246 should be interpreted as referring to all prosecutors able to appear before this Court. In this way the definition of "prosecutor" in the CP Act (see par 10 which refers to a person instituting a prosecution) does not restrict the application of the CP Act to prosecutions commenced by local councils in their own name. Section 257D applies to circumstances in which costs are awarded against a prosecutor acting in a public capacity. 20 The status of the Council as a public body commencing a prosecution was confirmed in Castlebar. In Castlebar the Court of Criminal Appeal was considering an appeal against the refusal of an order for costs by the District Court. The District Court had heard an appeal from a local court against an order that it pay the informant's costs, inter alia, and had upheld the appeal but refused an application for costs. The availability of costs was governed by s 70 of the Crimes (Appeal and Review) Act 2001 (the Appeal Act). Section 70 is in very similar terms to s 257D of the CP Act. Section 70 provides: 70 Limit on costs awarded against public prosecutor (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. … 21 Amongst the questions before the Court of Appeal was whether it was open to the District Court to hold that the prosecutor was acting in a public capacity in bringing the prosecution for the purposes of s 70. The prosecution was commenced by an informant who was employed by the council. "Prosecutor" is defined in s 3 of the Appeal Act as: "prosecutor", in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings.

22 This definition I note is similar to the definition in the CP Act. 23 Grove J in Castlebar stated at [16]: Merriwa Shire Council (the Council) is constituted with responsibilities for the better government of the relevant part of the State of New South Wales: see Constitution Act s 51 as inserted by the Constitution (Local Government) Amendment Act 1986 . It is accordingly an organ of government and in the discharge of its function by way of prosecution for an offence, it is empowered to delegate the laying of information on its behalf to an employee such as the respondent: Local Government Act 1993 s 684(b). 24 The council through the informant had undertaken its prosecution against the appellant as part of its duties under the Noxious Weeds Act 1993. Grove J (Spigelman CJ and Bell J concurring) held at [23] that as the respondent had laid the information on behalf of the Council in discharge of its statutory duties he had acted in a public capacity. 25 Further at [28] the his Honour held: The mention of a "public prosecutor" in the heading preceding s 70 does not lead to an examination of the status of the respondent or the Council as such. The exclusion of the operation of the provision requires the informant to act in a private capacity and there is no purpose to be served in seeking to find categories of public prosecutors (suggested to be limited to the Director of Public Prosecutions and police) from other informants. It is, in my view, unimaginable that the respondent as a delegate of a shire council acting pursuant to statutory delegation, laying an information to enforce by prosecution a breach of a statute which it is the Council's duty to enforce, was acting in a private capacity. 26 In the present case the Council commenced the prosecutions in its own name. Its status as an "organ of government" is clear and its power to commence prosecutions is conferred by the LG Act s 684(a). Applying similar reasoning to that in Castlebar at [28], the heading of the section of s 257D does not require an examination of the status of the prosecutor (in that case the status of an individual informant) being the Council, a local government body, as to whether it pursued these prosecutions in a public capacity. Accordingly s 257D applies to these prosecutions. The structure and provisions of the CP Act does not prevent such a conclusion. 27 I consider this approach based on Castlebar is open regardless of the fact that the definition of "prosecutor" in the Appeal Act also refers to the person responsible for a prosecution. Alternatively if the definition of "prosecutor" under the CP Act is considered, the term "person" should be interpreted as referring also to the council prosecuting in its own name in matters before this Court under Ch 4 Pt 5. 28 I consider s 257D does apply to these two prosecutions.

(b) Is s 257D satisfied? Defendants' evidence 29 The Defendants relied on the course of conduct of the prosecution in their arguments. Additional evidence filed in the hearing on costs was an affidavit of Mr Mark Magennis, solicitor for both Defendants, sworn 22 October 2007. The affidavit sets out events leading up to the hearing including court appearances and correspondence between the solicitors for the Defendants and the Prosecutor. Costs incurred for each court attendance prior to the main hearing are also set out.

30 An agreed chronology of the steps in both proceedings up to the time these were heard is as follows:

10 July 2006 Allan Hagney Captain of Camden Haven Rural Fire Service attends property with Mr Petro 13 July 2007 Lindsay went to the property with Billy Armitage. 18 July 2006 Lindsay (p128 D4 transcript) says he first met Eddie Petro on this day and (p126 D4 transcript) commenced work on the property. (P129 D4 transcript) "Just do it as your doing, yeah" 3 August 2006 Robert Hanlon attends property in response to reports of clearing. Andrea Davine attends property notes clearing 8 August 2006 Andrea Davine receives phone call and attends property in company with Leanne Fuller - Town Planner, and Robert Hanlon - Tree Assessment Officer 8 August 2006 · Andrea Davine affidavit 20 September 2006 states she attends property and speaks to Dean Lindsay who believes that Eddie Petro is one of the owners (p.3) and says that he was contracted by Billy Armitage. Says Petro comes out everyday and "Just says he's happy with what I'm doing and to keep going. (p.4). · Hand written notes made by Andrea Davine 8/8/06 say "Eddie comes out each day. Is happy with what I am doing". Her notes of the conversation became exhibit Q. 8 August 2006 Bulldozer driven by Mr Lindsay stops work on property. 8 August 2006 Eddie Petro attends council and allegedly authorises council to go onto the property and allegedly says he is able to give council that permission. Estimated as (PP331-333 D7 transcript) -A couple of weeks after Lindsay was stopped from working (08/08/2006) he met Andrea Davine at the Wauchope Council Chambers and a statement was taken from him. He was happy to tell her anything that she wanted to know. He had only one story to tell. He answered every question she asked. 22 August 2006 Estimated as (PP331-332 D7 transcript) - Perhaps a week after giving statement to Andrea Davine Lindsay received a written statement from her and signed it after seeking some changes. The undated statement says that on the first day of work and the first meeting with Eddie Petro he said "Good job, keep going" and that Eddie came to the site nearly every day and said "good work". (became exhibit P) 29 August 2006 21 September 2006 Class 5 Summons filed against Lawlor Services Pty Ltd 22 September 2006 Andrea Davine interviews Greg Laws Director of Lawlor Services for the first time. 22 September 2006 Andrea Davine interviews Eddie Petro. Prosecution serves on Lawlor Services Pty Ltd: · Peter Matthew Owens sworn 4 September 2006, 17 November 2006 · Andrea Kylie Davine sworn 20 September 2006, · Andrea Kylie Davine sworn 13 October 2006; · Robert John Hanlon sworn 18 October 2006. 7 December 2006 · Falvey asks prosecutor if evidence is complete and if not when will further evidence be received. · Prosecutor replies that it has recently become aware of additional witnesses, which it wishes to interview. It is anticipated that the evidence given by these witnesses will be used in the prosecution of Lawlor services. It is also anticipated that proceedings will be commenced against Eddie Petro arising from the same clearing. 18 December 2006 Andrew Rock Council Ranger contacts Mr. Glen Fullford and Mr. Bill Armitage and they refuse to give a statement. 19 December 2006 Allan Hagney Capt with NSW Rural Fire Service provides Statement 18 January 2007 Class 5 Summons filed against Eddie Petro 20 January 2007 Eddie Petro Served with order and summons Prosecution serves upon Lawlor Services Pty Ltd affidavits of: · Kevin Lewis sworn 30 January 2007, · John Bartlett sworn 30 January 2007, · Robert Toms sworn 30 January 2007; · Andrew Rock sworn 31 January 2007, · Alan Hagney sworn 30 January 2007.

31 January 2007 Prosecution serves upon Edmund Petro some affidavits of: · Andrea Kylie Davine sworn 20 September 2006, · Andrea Kylie Davine sworn 13 October 2006; · Robert John Hanlon sworn 18 October 2006. · Kevin Lewis sworn 30 January 2007, · John Bartlett sworn 30 January 2007, · Robert Toms sworn 30 January 2007; · Andrew Rock sworn 31 January 2007, · Alan Hagney sworn 30 January 2007. Prosecutor's solicitors write letter received by Falvey Associates 12 March 2007. Letter is in accordance with court direction to summarise evidence they would anticipate being able to lead from Dean Lindsay, Bill Armitage and Glen Fullford. 9 March 2007 The prosecutor advises that in respect to Dean Lindsay "The evidence the prosecutor anticipates being able to lead from Mr Lindsay is set out in paragraph 9 of the Affidavit of Andrea Davine dated 20 September 2006." Falvey Associates seeks further and better particulars of the charge in the proceedings namely: 12 March 2007 1. Which of the separate provisions in s.125 of the Environmental Planning & Assessment Act is relied upon by the prosecutor for the allegation that the alleged activity was prohibited. 2. Identify each tree which is alleged to be destroyed by reference to its species, height and description as well as location at which it was growing at the time of the alleged offence. How is it alleged each tree was destroyed. 10 May 2007 Defence issues Notice to Produce to the Prosecutor seeking production by 18 May 2007. 14 May 2007 About a week before Lindsay is served with Subpoena the Council rings him to see if he will provide an affidavit. (p334 D7 transcript) 21 May 2007 Dean Lindsay served with Subpoena to attend and gives evidence by Council. (p334 D7) 22 May 2007 Dean Lindsay receives affidavit in mail. (p334 D7 transcript) 22 May 2007 Prosecutor produces documents pursuant to notice to produce dated 10 May 2007 which includes handwritten notes of an interview with Dean Lindsay and a signed statement of Dean Lindsay (undated). 24 May 2007 Dean Lindsay swears affidavit of 24 May 2007 (becomes exhibit O). He states he had not had any contact with the council between the time of his written statement and the affidavit. He was served with a subpoena on 21 May 2007 (p334 D7 transcript). 25 May 2007 Prosecution serves affidavit of Dean Lindsay affirmed 24 May 2007. 28 May 2007 Hearing commences.

Defendants' submissions 31 The costs regime in s 257D came into effect as an exception to the application of the principles in Latoudis v Casey in criminal proceedings. 32 The provisions relating to the awarding of professional costs to defendants who are acquitted of criminal proceedings are compensatory and designed to mollify the burden on companies and individuals who suffer the obligation of having to establish that a prosecution is not well founded.

33 The structure of Div 4 (Costs) in Pt 5 to the CP Act in which s 257A and s 257D appear is, firstly, that the power to award professional costs to the accused person is bestowed in a separate provision, namely s 257C of the CP Act. Secondly, s 257D limits the circumstances in which an award of professional costs is permitted by the CP Act. Thirdly, s 257E exempts public officers and police officers from personal liability for costs.

34 Sections 257D and 257E are exceptions to the general provision in s 257C of a right to seek costs and ought in the context of criminal proceedings, to be construed beneficially to the accused person and with no wider effect than the express words permit. 35 Guidance on the correct approach to the award of costs under s 257D can be obtained from decisions concerning the application of the Costs Act. In Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 McColl JA summarises a number of principles to be applied at [36]; R v Pavy (1997) 98 A Crim R 396 and R v McFarlane (Blanch J, NSWCCA, 12 August 1994 unreported), applications under the Costs Act, were also relied on. Additional cases concerning applications under the Costs Act were referred to in the Defendants' written submissions. Further, JD v Director of Public Prosecutions & Ors [2000] NSWSC 1092 considered the question of whether the proceedings had been commenced without reasonable cause under the Justices Act 1902 and should be applied here.

36 The test is not that applied by magistrates under the Justices Act of "no reasonable jury would be likely to convict", nor whether any reasonable prospect of conviction, nor reasonable suspicion justifying an arrest or that determining if prosecution is malicious but means more than the Prosecutor having a prima facie case. 37 The more common charges of vicarious liability were not pursued. Nor were the charges that of "aiding and abetting". Instead a novel prosecution based on joint criminal enterprise was commenced. The Prosecutor considered that the charge might be proven on the basis that, firstly, there was an agreement between Mr Petro and Mr Lindsay to carry out an act, namely, knocking over a tree or trees in excess of 3m. Secondly, Mr Petro participated by his presence and encouragement of Mr Lindsay. Finally that Lawlor Services was guilty if Mr Petro was guilty. Lawlor Services 38 At the stage that the prosecution against Lawlor Services was commenced on 21 September 2006 the main evidence was found in the affidavit of Ms Davine, Council officer, sworn 20 October 2006. At that stage she had interviewed Mr Lindsay as referred to in that affidavit. His evidence was that Mr Armitage had asked him to do the cleaning up work at the property and that he had met Mr Petro for the first time on the day he started work at the property. There was no connection between Mr Lindsay and Lawlor Services based on that affidavit material. Nor is there any reference in Mr Lindsay's statements to Ms Davine that Mr Petro gave him instructions or was present when he knocked over trees in excess of 3m. This evidence is also consistent with that in the first written statement of Mr Lindsay, exhibit P, and continued in the affidavit of Mr Lindsay, exhibit O, which was not sworn until May 2007. According to Mr Lindsay there was no contact from the Prosecutor between the preparation of the statement in exhibit P (in about August 2006) and shortly before his affidavit being sworn on 24 May 2007. 39 The Defendants submitted that based on the evidence available at the time proceedings were commenced against Lawlor Services and in light of the case of joint criminal enterprise ultimately argued, the Prosecutor should have known the case against Lawlor Services in particular had little chance of success. It should have been clear that Mr Lindsay was not employed by Lawlor Services and was not engaged as an independent contractor by that company or Mr Petro. The case as finally argued depended on a finding of guilt of Mr Petro to also establish the guilt of Lawlor Services. All subsections of s 257D apply to the prosecution of Lawlor Services and costs should be awarded in its favour. Mr Petro 40 By the time the proceedings were commenced against Mr Petro on 18 January 2007 there was additional evidence relied on such as the second affidavit of Ms Davine dated 13 October 2006 which refers to conversations with Mr Laws and Mr Petro. That evidence is consistent with previous evidence, namely that Mr Lindsay was asked to do cleaning up work to enable burning of debris by the Rural Fire Service left over from logging operations. This evidence is also confirmed by Mr Hagney's oral evidence about the advice he gave to Mr Petro. 41 Further inadequacies in the evidence relied on by the Prosecutor were that the affidavits of Mr Hanlon and Ms Davine did not refer to the height of trees knocked over, an essential part of the Prosecutor's case. 42 In relation to Mr Petro there was a crucial failure to ask Mr Lindsay before the prosecution commenced, he being willing to cooperate with the Prosecutor, "did you ever see Mr Petro watching you working when you were knocking over trees in excess of 3 metres?" and "was Mr Petro ever there when you were knocking over trees in excess of 3 metres?" None of the evidence addressed these two key matters. Consequently all the subsections of s 257D also apply to this prosecution. Section 257D(a), (b) - conduct of investigation was unreasonable, proceedings initiated without reasonable cause 43 (i) Despite the absence of any reference in the summons commencing the prosecutions, including in any particulars given by the Prosecutor prior to the commencement of the hearing, the sole basis upon which the prosecutions depended by the time the hearing commenced was the principle of joint criminal enterprise. It was unreasonable of the Prosecutor to commence a prosecution without giving notice that this was the sole basis of alleged culpability. It was unfair to both of the accused that they were forced to meet the Prosecutor after the true and sole basis of the prosecution was announced in the Prosecutor's opening address. (ii) Although the community has a legitimate interest in crimes being prosecuted, this does not make it reasonable to prosecute when there are significant weaknesses in the prosecution case of which the Prosecutor, acting reasonably, ought to have been aware: R v Pavy . (iii) The key witness in any attempt to prove the agreement between Mr. Lindsay and Mr. Petro or the presence of Mr. Petro during the alleged destruction of any tree above the height of 3m (within the meaning of the Tree Preservation Order) was Mr. Lindsay. Yet, none of the evidence from Mr. Lindsay focused on either matter and, indeed, as the Court held, there was no evidence from Mr. Lindsay of either of those facts: Port Macquarie (No 6) [170], [172]. When Mr Lindsay was declared an unfavourable witness and was asked by the Prosecutor if he observed whether Mr Petro was present when he was knocking over trees in excess of 3m he replied he did not know if Mr Petro was there. That was critical evidence which the Prosecutor failed to clarify before commencing proceedings.

44 On that basis, the prosecution had little chance of success from the outset, and should never have been commenced against Mr Petro because it was unreasonable and improper to do so. Section 257D(1)(c) - failure to investigate properly 45 Further, the Prosecutor unreasonably failed to investigate or to investigate properly the relevant elements which would be necessary to prove or establish a joint criminal enterprise between Mr. Lindsay and Mr. Petro. There was not the slightest evidence of an agreement between Mr. Lindsay and Mr. Petro to destroy trees above the height of 3m on the property. Had the Prosecutor investigated the matter reasonably or at all, this fact would have been evident from the outset. On that basis, again, the prosecution should never have been commenced and s 257D(1)(c) applies. Section 257D(1)(d) - exceptional circumstances 46 The circumstances when considered under the CP Act are exceptional because the Prosecutor in this case, if successful, is paid the penalty by virtue of s 694 of the LG Act. It is therefore in an unusual position of benefiting financially from the outcome of a successful prosecution. It also chose to commence possibly the first prosecution in Australia on the basis of joint criminal enterprise in relation to a strict liability offence, a very unusual charge.

Prosecutor's submissions 47 In general opening it was submitted that if the Prosecutor is successful in opposing the costs orders sought by the Defendants under the CP Act it will have succeeded on the costs application and the Defendants should pay the Prosecutor's costs of this application. The Prosecutor is not a contradictor to an application under the Costs Act and whether a certificate ought to issue is largely a matter for the Court to determine. The Prosecutor would be awarded its costs of any such application under the Costs Act. 48 The Defendants bear the onus of establishing any of the matters in s 257D, relying on Fosse v DPP & Anor [1999] NSWSC 367 at [16] (considering whether costs ought be awarded under s 81 of the Justices Act). Contrary to the submissions of the Defendants, s 257D is not an exception to the usual costs rule, see Castlebar at [26]. The legislature has decided that in criminal matters costs do not follow the event in favour of a defendant. 49 Most of the authorities relied on by the Defendants are of no assistance as these concern applications under the Costs Act which has a different test to that in s 257D of the CP Act. The inquiry under s 257D is more constrained than the inquiry under the Costs Act, see Cumberland v Department of Public Prosecutions & Anor, (Hulme J, NSWSC, 7 June 1996, unreported) which considered whether costs ought be awarded under s 81 of the Justices Act or a certificate issued under the Costs Act. Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550, Pavy and R v Manley [2000] 49 NSWLR 203 are decisions under the Costs Act. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 referred to in the written submissions is irrelevant as that is a defamation case not a criminal matter. No other relevant authorities were provided. 50 The subsections in s 257D direct themselves to different times and different conduct, each of which must be considered.

51 The proceedings were prosecuted on the basis of joint criminal enterprise. Even if I had found that no charge was legally available that would not be a basis for awarding costs under s 257D and is not the case here. I did not uphold a "no case" application by the Defendants and did not hold the charges were not available in the proceedings but found that they were not satisfied on the evidence. In Canceri v Taylor (1994) 123 ALR 667 the reasoning of Wilcox J in Kanan v Australia Post & Telecommunications Union (1992) 43 IR 257 was adopted and is relied on here. The reliance on joint criminal enterprise alone, even if novel, is not relevant to the Court's consideration of s 257D(1)(b), proceedings conducted improperly, or (d), exceptional. 52 The Defendants' submissions ignore the fact that joint criminal enterprise can arise on the basis of agreement and participation, both of which may arise from inference on the evidence. That was the case mounted by the Prosecutor. There is no requirement of direct evidence of agreement between Mr Lindsay and Mr Petro to establish the offence. 53 The fact the Court was not satisfied beyond reasonable doubt that the necessary inference should be drawn is evidence only of the failure of the Prosecutor to prove its case beyond reasonable doubt. Section 257D is not enlivened by that circumstance alone. Castlebar CCA [26] is relied on. 54 The Prosecutor relied on par 9 of Ms Davine's affidavit sworn 20 September 2006 which relates the conversation with Mr Lindsay and was the evidence from Mr Lindsay ultimately sought to be relied on in the proceedings. The Prosecutor told the Defendants that it anticipated leading evidence from Mr Lindsay in accordance with par 9 of the affidavit of Ms Davine before a plea was entered. There is no unfairness, misconduct, exceptional circumstance or failure in investigation which arises under s 257D as a result. An affidavit was later provided which was in similar terms to what had been disclosed. The only purpose of the affidavit was to inform the Defendants what Mr Lindsay's evidence was and that had already been done. It was then necessary to apply to have him declared an unfavourable witness because his evidence was not in accordance with his affidavit. There is no particular failure of investigation or failure to inform of specific evidence identified in the Defendants' submissions. 55 Properly considered the Court ought not be satisfied of any of the matters referred to in s 257D. The principles in Mordaunt (partly set out at par 85) while concerning the Costs Act are useful to consider in this context. If the principles are applied to the CP Act which is more stringent, then the requirements in s 257D are clearly not met (as they were not met in Mordaunt in relation to the Costs Act). Finding on whether s 257D applies 56 No cases which have considered s 257D of the CP Act in this Court in any detail were provided by the parties. The requirements in s 257D are different from the Costs Act, which has been considered in numerous cases in the Supreme Court, inter alia. While the Defendants addressed cases which have determined applications under the Costs Act I agree with the Prosecutor that they are of limited utility given the specific requirements in s 257D. As the parties identified in their submissions, under the Costs Act there is an element of retrospectivity in relation to the necessary inquiries the court must make whereby a court can consider matters that were known when proceedings were commenced and additional matters relied on or discovered in the course of the trial to determine whether the institution of proceedings was reasonable. 57 Under s 257D of the CP Act the issues are assessed on the basis of what actually occurred, not with the benefit of hindsight. Subsection (b) refers to when the proceedings were initiated. In Allerton, the "institution of proceedings" in s 3 of the Costs Act was held to refer to the time of arrest or charge not a later stage such as a committal for trial. Applying that reasoning here I must consider the evidence as it existed when the respective charges were laid in relation to whether the proceedings were initiated without reasonable cause. I do not understand that the Defendants are arguing that the proceedings were conducted in an improper manner. 58 The now repealed Justices Act contained provisions relating to the awarding of costs to defendants and/or appellants which were very similar to s 257D of the CP Act. For example s 41A(2A) was considered in JD v Director of Public Prosecutions, s 125(3) was considered in Eslarn Holdings v Tumut Shire Council (No 3) [1999] NSWLEC 163 and s 81(4) was considered in Fosse v DPP and in Cumberland v DPP. The CP Act now deals with the awarding of costs in criminal matters. Section 117 applies to committal proceedings, s 214 in summary proceedings and s 257D in proceedings under Ch 4 Pt 5 of the Act. These various provisions are very similar. Section 70(1) of the Appeal Act is also in similar terms and was considered in Castlebar Holding v Riley, Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13, and in Halpin v Department of Gaming and Racing [2007] NSWSC 815, amongst other cases. 59 Section 257D was passed subsequent to the decision in Latoudis v Casey and constrains the discretion of the Court to award costs. The statement in Castlebar of Grove J at [26] "There is a clear difference created by legislation from the situation identified in Latoudis." in relation to s 70 of the Appeal Act also applies to s 257D. 60 As mentioned above, cases which have considered s 70 of the Appeal Act are of assistance as that section is in very similar terms to s 257D. In Halpin Hall J considered each of the subsections in s 70 in determining if a costs order should be made under that section. In relation to whether the investigation was conducted in an unreasonable or improper manner (s 70(1)(a)) his Honour considered that the failure of proceedings did not give rise to a costs order under s 70, referring to Regina v Moore; ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470. The conduct of the investigation must fall grossly below the relevant standards applicable to the relevant type or class of investigation, referring to JD v DPP. In JD there was a failure by police to conduct certain interviews according to established protocols. Hidden J held that the fact that an investigation was not done in an optimum way did not suggest it was unreasonable or improper unless grossly below optimum standards. He held in the circumstances this was not established. 61 In relation to whether the proceedings had been instituted (in the Local Court) without reasonable cause or in bad faith or were conducted in an improper manner (s 70(1)(b)), his Honour in Halpin considered the meaning of "without reasonable cause" and referred to Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275. His Honour stated at [57] -[60]: 57 Further, I do not consider that it can be said that the proceedings were "initiated without reasonable cause". In Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; (2006) 156 FCR 275, the Full Court of the Federal Court at [60] stated:-

"The question therefore arises whether ... the plaintiff instituted the proceeding vexatiously or without reasonable cause. A party does not institute proceedings without reasonable cause merely because that party fails in the argument put to the Court: Regina v Moore; ; ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470 per Gibbs J at 473. The section reflects a policy of protecting a party instituting proceedings from liability for costs, but that protection may be lost. Although costs will rarely be awarded under the section, and exceptional circumstances are required to justify the making of such an order ... a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure: Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 per Wilcox J; see also Bostik (Australia) Pty Limited v Gorgevski (No 2) (1992) 36 FCR 439; Nilsen v Loyal Orange Trust (1997) 67 IR 180."

58 The question as to whether at the time the proceeding was instituted it had "no real prospects of success or was doomed to failure" is a question that is required to be determined as a matter of objective fact: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Nestle Australia Limited ( 2005) 146 IR 379 at [4] citing Spotless Services Australia Limited v Marsh SDP [2004] FCA FC 155 at [13].

59 The Full Court in Kangan (supra) at [63] stated:-

"[i]t is a matter of judgment, sometimes of fine judgment, in all the circumstances of a particular case whether a proceeding is brought without reasonable cause. The phrase 'vexatiously or without reasonable cause' was described by von Doussa J in Hatchett v Bowater Tutt Industries Pty Limited (No 2) [1991] FCA 188; (1999) 28 FCR 324 at 327 as 'similar to the one applied by a Court on an application for the exercise of summary power to stay or strike out proceedings."

60 In Canceri v Taylor (1994) 123 ALR 667, the Industrial Relations Court of Australia determined an application for costs by assessing whether or not at the time of instituting proceedings upon the facts apparent to the informant, there was no substantial prospect of success. The Court, per Moore J at 676, adopted the approach of Wilcox J in Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 at 264:-

"It seems to me that one way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being 'without reasonable cause'. But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause."

62 Wilcox J in Kanan has been adopted in other criminal proceedings in addition to Halpin, see for example Eslarn Holdings. 63 In relation to whether the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter (s 70(1)(c)) in Halpin Hall J held he had to consider if the facts which it could be said the prosecutor failed to have sufficient regard to were facts that it ought reasonably to have been aware of would have suggested that the proceedings should not have been brought. As, despite those facts, he considered the prosecutor still had an arguable case he held this section did not apply. 64 In relation to whether there were exceptional circumstances (s 70(1)(d)), Hall J in Halpin considered that the issue was whether or not there was any relevant conduct by the prosecutor suggesting it was "just and reasonable" to award costs in favour of the plaintiff. His Honour referred to Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552 in which the Court of Criminal Appeal considered that "just and reasonable" required that there be a fair hearing and that the terms of the order finally made were reasonable. 65 In light of the case law referred to above I will determine if any of subsections of s 257D apply in the circumstances of this case. If one of the subsections under s 257D is held to apply then costs can be awarded under s 257C. The Defendants have the onus of establishing that s 257D applies, see Fosse v DPP. 66 The Prosecutor's case of joint criminal enterprise between Mr Lindsay and Mr Petro was based on proving by inference agreement and participation: the case relied on proof of several matters in combination which included but was not limited to the "instructions" received by Mr Lindsay from Mr Petro. Also relevant was the presence of Mr Petro on the site for short periods on each of the twelve days Mr Lindsay estimated he did work on the property. Other relevant matters were the appearance of the property after logging took place but before Mr Lindsay commenced work and its appearance after the clearing work by Mr Lindsay was undertaken. One important issue was whether trees had been knocked over during the logging process or by Mr Lindsay in the clearing up afterwards. Mr Hanlon's evidence was significant in this regard. This issue required that there be consideration of, inter alia, the number of trees over 3m which were knocked over by Mr Lindsay over a twelve day period and extensive evidence on this issue was necessary. Evidence of three logging contractors was also relied on. Further evidence concerned the advice of Mr Hagney of the Rural Fire Service to Mr Petro about heaping up logs for burning off. 67 The chronology set out above at par 30 identifies the major steps taken in the preparation of the two cases by the Prosecutor. In relation to Lawlor Services, at the time proceedings were commenced and the order and summons served on 21 September 2006 the evidence the Prosecutor had was the affidavit of Ms Davine sworn 20 September 2006. Mr Petro was first interviewed by Ms Davine on 22 September 2006 as was Mr Laws, Director of Lawlor Services. 68 Further evidence prepared after Lawlor Services was charged was in the further affidavit of Ms Davine dated 13 October 2007 and the affidavits of Mr Hanlon, Council officer, dated 18 October 2006 served on Lawlor Services on 17 November 2006. Additional evidence relied on by the Prosecutor in relation to the appearance of the relevant property after logging was evidence from the three logging contractors, Mr Bartlett, Mr Toms and Mr Lewis who swore affidavits on 30 January 2007. Mr Hagney, Captain with the Rural Fire Service swore an affidavit about a conversation with Mr Petro about clearing up logs for burning. Mr Petro was served with the order and summons on 20 January 2007. All of this evidence was served on Mr Petro on 31 January 2007.

Section 257D(1)(a) - Petro/Lawlor services 69 In relation to s 257D(1)(a) and the investigation undertaken I do not consider that it was conducted in an unreasonable or improper manner because the Prosecutor did not ask two questions of Mr Lindsay in relation to Mr Petro, as the Defendants submitted. The Prosecutor's case relied on proof of more evidence than what Mr Lindsay could say about Mr Petro. The conduct of the investigation by the Prosecutor does not suggest that it was grossly below optimum standards (see Halpin referring to JD v DPP).

Section 257D(1)(b) - Petro/Lawlor Services 70 In relation to s 257D(1)(b) and whether the proceedings were commenced without reasonable cause it is necessary to consider the evidence on which the Prosecutor relied in its case when proceedings were initiated by serving the two respective charges. The charge against Lawlor Services was laid in September 2006 and the charge against Mr Petro was laid in January 2007. Under this subsection the question that arises is whether the proceedings were commenced without reasonable cause, which has been held in the cases referred to above at par 61 as meaning that the prosecution had no substantial prospect of success or was doomed to failure at the time the proceedings were commenced. 71 Ms Davine's first affidavit contained her conversation with Mr Lindsay who identified Mr Petro (incorrectly) as an owner of the property. She also attested to the state of the property after Mr Lindsay had completed the clearing up work. The affidavit dealt with a number of the essential matters in the case ultimately argued in relation to Mr Petro. However, given that the case as argued against Lawlor Services depended on a finding of guilt of Mr Petro and he had not been interviewed or charged at that stage does suggest that at the time proceedings were commenced against Lawlor Services they were commenced without reasonable cause in that they had no reasonable prospect of success. I accept the Defendants' submissions summarised at par 39. I consider therefore that costs should be awarded to Lawlor Services under s 257C as s 257D(1)(b) applies in the case of Lawlor Services. 72 In relation to Mr Petro, the Defendants' submissions focused on the evidence of Mr Lindsay. He was a key witness in the case the Prosecutor sought to mount but the case argued by the Prosecutor did not rely entirely on his evidence. I agree with the Prosecutor that his evidence concerning Mr Petro did not alter substantially between his statement in August 2006 (exhibit P) and his affidavit sworn May 2007 (exhibit O). 73 Whether there was a reasonable cause of action must be considered in the context that the Prosecutor was seeking to mount a case based on joint criminal enterprise with agreement and participation arising by inference. That required proof of a combination of matters, as identified above at par 66. While unsuccessful in the prosecution of Mr Petro on this basis I do not consider the proceedings were commenced against him without reasonable cause. Section 257D(1)(c) - Mr Petro 74 Section 257D(1)(c) refers to a failure to properly investigate any relevant matter as a prosecutor ought reasonably to be aware of 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. Because the case against Mr Petro relied on inference, the failure to obtain certain evidence from Mr Lindsay alleged by the Defendants is not indicative of a failure to which s 257D(1)(c) applies. As identified above the case alleged against Mr Petro relied on a number of factors, see par 66, and I do not consider there were matters which the Prosecutor failed to investigate properly which suggested the proceedings should not have been brought against Mr Petro.

Section 257D(1)(d) - Mr Petro 75 Section 257D(1)(d) arises if there are other factors not already considered in relation to earlier subsections which suggest that a costs order ought be made, those circumstances having to be exceptional. "Exceptional" is not defined in the CP Act and is potentially of broad ambit. Its ordinary meaning is "something out of the ordinary" or "unusual". As referred to in Halpin and as stated in the subsection, the focus should be on the conduct of the litigation by the Prosecutor. In terms of the Defendants' arguments, the fact that a prosecution is novel is not alone an exceptional circumstance relevant to the award of costs. Nor is the fact that the Prosecutor receives any penalty it obtains under a successful prosecution. As identified in Halpin what should be considered is the conduct of the proceedings by the prosecutor and whether there was a fair hearing. 76 Unsatisfactory conduct of the Prosecutor identified in the Defendants' submissions in relation to another subsection of s 257D was the fact that the basis of the criminal charges were only identified to the Defendants in the Prosecutor's opening address on the first day of the hearing. While that was unsatisfactory I do not consider that it lead to an unfair hearing and it does not amount to exceptional circumstances in this case. I do not consider this subsection applies. (c) whether partial costs award appropriate 77 I have awarded costs to Lawlor Services Pty Ltd under s 257C. If costs are awarded under 257C then the Prosecutor argued there should only be a partial award of costs because much of the hearing time was spent on unsuccessful applications by the Defendants. There is power to award costs on a partial basis, see Newcastle City Council v Pace Farm Egg Products Pty Ltd [No3] [2005] NSWLEC 423, Morrison v Defence Maritime Services Pty Ltd, Coates & Mahon [2007] NSWLEC 552. There were a large number of interlocutory hearings as identified in the five interlocutory judgments of the Court in virtually all of which the Prosecutor was successful. 78 The Defendants argued there should be no apportionment of costs given that these are criminal proceedings not civil, see Acuthan v Coates (1986) 6 NSWLR 472 concerning the awarding of costs in criminal proceedings provided under s 41A of the Justices Act which provides that a magistrate may make an order for costs if just and reasonable to do so. At 480 Kirby P (Glass and Mahoney JJA concurring) stated: The section recognises that persons accused of criminal offences can be put to a great deal of expense in defending themselves. Unlike civil litigation, they cannot simply compromise the matter. Their liberty, reputation and pocket are, or may be, at risk. Yet sometimes they may be discharged, with no real conviction as to their innocence, simply because the prosecution has been unable to prove its case as the law requires. On other occasions, as appears to have been the case here, the defendant may be discharged following a more emphatic conclusion that the prosecution was misconceived in the first place, resulting in great inconvenience and cost, to say nothing of the peril and ignominy that may attend a criminal prosecution which attracts publicity. 79 None of the issues relied on by the Prosecutor are separate issues they are part and parcel of the determination of the substantive issues in the case. 80 I accept the Defendants' submissions and do not consider a partial award of costs to Lawlor Services is appropriate and that it should receive its costs in full. Application of Costs in Criminal Cases Act 1967 81 As I have awarded costs to Lawlor Services under s 257C of the CP Act I need only consider whether a certificate under s 2 of the Costs Act should be granted in relation to Mr Petro. Sections 2 and 3 of the Costs Act are set out in par 8. The Costs Act is a separate costs regime to that in s 257D of the CP Act as already identified at par 8 and 56. Section 3 is different to s 257D of the Costs Act and has been considered in Allerton v Director of Public Prosecutions, R v Pavy, R v Manley, and Mordaunt, inter alia.

Defendants' submissions 82 The Defendants submitted that if all the facts now known are considered it is appropriate that a certificate issue under s 2 of the Costs Act because it was unreasonable to commence the proceedings. There were two critical evidentiary questions in the hearing: (i) whether there was evidence of an agreement between Mr Petro and Mr Lindsay that Mr Lindsay would destroy trees over 3m in height; and (ii) whether there was evidence of Mr Petro observing Mr Lindsay destroying a tree over 3m in height and providing encouragement. 83 The Defendants submitted that there as was no evidence collected which established either of those issues the prosecutions were commenced unreasonably. 84 The Prosecutor did not consider its role was to act as a contradictor to the Defendants' Costs Act application, the issuing of a certificate being a discretionary matter for the Court.

Finding 85 Relevant principles applicable to the Costs Act are identified by McColl JA in Mordaunt at [36], extracted are those relevant in this case 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; … (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 an application must find what, within the Act, were "all the relevant facts" and assume the prosecution to have been "in possession of evidence 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 is 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); … (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]); Regina v Hatfield [2001] NSWSC 334; (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in Regina v Ahmad [2002] NSWCCA 282;

… (k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O'Brien J agreed; cf Manning JA (at 85)); … (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); 86 Applying these principles I note that the legislation has a beneficial intent and that the Defendants bear the onus of showing it was not reasonable to institute the proceedings. I need to consider the relevant facts ultimately found in the case to determine if the institution of the prosecution was unreasonable in light of all those facts. I am able to consider all the facts as they were determined in the course of the proceedings including at trial. All the Prosecutor's evidence had been served in affidavit form before the hearing and the facts it purported to rely on were so identified. A number of witnesses were required by the Defendants to give their evidence entirely orally, namely Mr Lindsay, Mr Toms, Mr Bartlett and Mr Lewis, the logging contractors, and Mr Hagney of the Rural Fire Service. Ms Davine's and Mr Hanlon's evidence was partly in affidavit form and partly based on their oral evidence which in turn was in large part similar to their affidavit evidence which was not "read". 87 The matters relied on by the Defendants (par 82) as matters which if known to the Prosecutor would have been fatal to the prosecution and therefore proof of the Prosecutor behaving unreasonably in commencing proceedings. These do not take into account the whole basis of the Prosecutor's case for proving participation and agreement to carry out a joint criminal enterprise by inference, but does relate to important aspects of the case the Prosecutor sought to prove. There were various matters required to be proved in the case as identified in par 66 above. The Prosecutor was ultimately unsuccessful (see [174] - [187] Port Macquarie No 6). I found that there was not an agreement between Mr Petro and Mr Lindsay because in part Mr Lindsay determined what trees were knocked over and Mr Petro did not speak to him directly before he commenced work at the property. Mr Lindsay had been employed directly by Mr Armitage who did not give evidence. I also took into account that there were no specific instructions to Mr Lindsay by Mr Petro about specific aspects of his work. I also considered if there was participation through the presence of Mr Petro when trees over 3m in height were knocked over, which required reliance on circumstantial evidence in the case. As identified at [184], while I held that a large number of trees were knocked over these were likely to be damaged trees or numerous spindly oaks many of which were not much more than 3m which grew all over the property. 88 One area of uncertainty in the evidence was whether trees were knocked over as part of the logging operation or the clearing up operations by Mr Lindsay. The Prosecutor was not able to establish this matter precisely on the expert evidence of Mr Hanlon. At [56] - [62] I made findings about the state of the property after logging and at [185] determined that participation was not established beyond reasonable doubt. 89 The complex and novel nature of the prosecution required proof of a number of matters by the Prosecutor in relation to joint criminal enterprise based on inference of agreement and participation. The evidence presented orally by Mr Lindsay, including after he was declared an unfavourable witness, and the findings I made as part of the proceedings in relation to Mr Lindsay's interactions with Mr Petro did result in part in the failure of the prosecution. There were other matters which the Prosecutor also did not prove to the necessary standard. Had all those facts been known before the proceedings were commenced it would have been unreasonable to have instituted proceedings in my view. I therefore consider I should exercise my discretion to issue a certificate under s 2 of the Costs Act. 90 I will issue a final order in accordance with this judgment to the effect that the Prosecutor is to pay the costs of Lawlor Services Pty Ltd in the prosecution pursuant to s 257C of the CP Act, as agreed or assessed. I will also issue a certificate under s 2 of the Costs Act in relation to Mr Petro. Costs of the costs hearing remain for determination.

ADDENDUM TO JUDGMENT IN PORT MACQUARIE - HASTINGS COUNCIL v LAWLOR SERVICES PTY LIMITED; PORT MACQUARIE - HASTINGS COUNCIL v PETRO (NO 7) [2008] NSWLEC 75

1. In Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro (No 7) [2008] NSWLEC 75 (Petro (No 7)) I determined that a certificate under s 2 of the Costs in Criminal Cases Act 1967 (the Costs Act) should be issued to the Defendant Mr Petro at [89]. Section 3 of the Costs Act states: (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

2. The certificate requires that I address both subsections (a) and (b) of s (3)(1). In Petro (No 7) no matters were raised in relation to subsection (b). I did not need to consider that subsection, as I stated at [8]. For completeness I observe in relation to s 3(1)(b) that no act or omission of the Defendant Mr Petro contributed, or might have contributed, to the institution or continuance of the proceedings. Accordingly I am able to issue a certificate in relation to s 3(1)(a) and (b) of the Costs Act.

10/04/2008 - Addendum in relation to certificate issued under s2 of the Costs in Criminal Cases Act 1967. - Paragraph(s) Addendum

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