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.