R v McNamara

Withdrawal and dismissal

1. Section 208 of the CPA relevantly provides: 51 208 Dismissal of matter if matter withdrawn (1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned. (2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.
2. The accused seeks an order under s 205 of the CPA which provides: 205 Order dismissing matter to be made (1) A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter. (2) A court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor. (3) This section does not apply to a matter that is taken to be dismissed because of section 208.
3. The accused agitates that it would be an abuse of process to allow the Prosecutor to withdraw the charges pursuant to s 208 and rather, the court ought to, of its own volition, dismiss the charges pursuant to s 205.
4. In support of that contention, I discern from the lengthy written submissions made by Mr Thomas that the gravamen of the accused's position (to paraphrase) is as follows: 1. A withdrawal pursuant to s 208 does not prevent the prosecution from reinstituting later proceedings in any court for the same matter against the same accused s 208(2); 2. The present prosecution comprises 282 charges which, if reinstituted, would require time to defend each charge at considerable expense to the accused and the antecedent cost to the health of the accused; 3. If the proceedings were reinstituted "pressure could be applied, even if improperly, to force him to make improper admissions, or even pleas in order to avoid the stress and costs of the new proceedings"; 4. The right on the part of the prosecution to reinstitute proceedings would bring the legal system into disrepute and would be oppressive; 5. The principle of finality requires dismissal as sought by the accused.
5. Under s 208 it is clear however that if a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused is taken to be discharged in relation to the offences concerned. There was no equivalent provision in the repealed Justices Act 1902 (NSW). Section 208 does not require or permit an order of dismissal of the matter by the court. The withdrawal of the matter deems that to have occurred upon withdrawal - the matter is taken to be dismissed and the accused person is taken to be discharged. [3]
6. Given that s 208 does not involve an order of dismissal of the matter by the court, the question arises as to whether the withdrawal of the matter under s 208 gives rise to an entitlement to a certificate of dismissal under s 205 which would have the consequence under s 206 of the CPA of preventing any later proceedings in any court for the same matters against the accused. Section 205 however specifically does not apply to the dismissal of proceedings under s 208: see 205(3).
7. It had been held under the former legislation that a magistrate had a discretionary power to allow the prosecutor to withdraw an information and should take into account whether the accused person objected or not to withdrawal: Lay v Cleary (unreported, NSWSC, James J, 23 February 1993). It was also held that a magistrate had power to grant leave to the prosecutor to withdraw an information even after the hearing had commenced, although a magistrate may have been less likely to exercise discretionary power to grant leave in favour of the prosecutor in such circumstances: Evans v DPP [2000] NSWSC 1005 at [43] - [45].
8. The Prosecutor submits that the court is functus officio having regard to the fact that the charges were withdrawn on the day that the matter was listed for mention after the Prosecutor had indicated that the charges would not be proceeding, i.e. 2 February 2017. There was accordingly no finding made on the facts as the matter did not proceed to a hearing. The accused had pleaded not guilty to all of the charges.
9. In the circumstances of the present case, the Prosecutor advised the Court on 2 February 2017 that the charges were withdrawn and accordingly, having regard to s 208 the charges are taken to have been dismissed. I think there is force in the Prosecutor's submissions on this point. Section 208 specifically contemplates what is to transpire in the circumstances as we have here. The accused however submits that to allow the Prosecutor to withdraw the charges pursuant to section 208 would amount to an abuse of process.
10. I have been referred to a number of authorities concerning the question of abuse of process which the court clearly has power to prevent. [4] Likewise, a magistrate has implied power to stay proceedings for a summary offence on the basis that the proceedings are an abuse of process: Prosecutor of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129; 102 A Crim R 180.
11. Section 208 contemplates the outcome of a prosecution in circumstances where charges are withdrawn by a prosecutor. The Prosecutor elected not to proceed with the charges after having been refused leave to vacate the hearing date. Accordingly, the merits of the prosecution case were never tested.
12. Having accepted that the court has power to prevent an abuse of process, Mr Thomas urges me to find that withdrawal of the charges pursuant to s 208 is an abuse of process: 1. Firstly, because to do so would permit the prosecution to institute later proceedings in any court for the same matter against the same accused. Clearly, the legislation contemplates this as a possible outcome. 2. Secondly, that in light of the high number of charges "the accused has had to expend considerable monies in his defence and his health has been affected". 3. Thirdly, reference is made in the submissions to material contained in an affidavit of the accused solicitor [5] and it is further submitted that in light of the accused's poor health and the weight of the prospect of possible future charges being laid would have upon him, [6] to allow withdrawal of the charges under s 208 would be oppressive and would bring the legal system into disrepute. 4. Fourthly, that if such later proceedings were instituted, the accused would be required to expend further sums towards his defence and in such circumstances pressure could be applied (from whom is not clear) even if improperly to force him to make improper admissions or even pleas in order to avoid the stress and costs of the new proceedings.
13. Dealing with the first of the submissions made on behalf of the accused, specifically the ability of the prosecution to reinstitute proceeding as against the accused at a later stage, I am satisfied that, by enacting s 208 in its present form, the legislature contemplated what was to occur when charges are withdrawn pursuant to s 208, namely that they are deemed (emphasis added) to be dismissed and the accused is accordingly discharged. No leave is required by the Prosecutor to withdraw the charges and in those circumstances what then follows is, so far as I apprehend the effect of the section, self-executing.
14. With respect to this submission, I am not persuaded that the case for the accused has been made out, i.e., withdrawal pursuant to s 208 constitutes an abuse of process and indeed for me to so find otherwise, in my view, subverts the clear intention of the legislature.
15. Concerning the remaining submissions, in so far as constituting an abuse of process is concerned, I note that Mr Thomas referred me to the decision of R v Feeney [2012] ACTSC 153 wherein Burns J made reference to the remarks of Lloyd J in Prosecutor General, Department of Environment and Climate Change v Gleeson (2009) 165 LGERA 99 and at [16] observed "Lloyd J was satisfied the court had the power to stay the prosecution as an abuse of process". His Honour noted: [26] The power to stay proceedings for abuse of process is discretionary and the categories of cases in which the court may stay its proceedings for abuse of process are various and not closed: R v Carroll (2002) 213 CLR 635 at 650-651; Rogers v The Queen (1994) 181 CLR 251 at 255. [27] However the power to stay is, in essence, a power to refuse jurisdiction and to interfere with prosecutorial discretion. It is therefore exercisable only in extreme and exceptional cases: Jago v District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at [34] and Gaudron J at [76]. [28] The discretion is determined by a weighing process which involves the subjective balancing of a variety of considerations. These considerations include fairness to the accused, the legitimate public interest in the disposition of charges of serious offences, the legitimate public interest in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice: Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 395-396.
16. I heed the note of caution to which His Honour refers in so far as I am invited by the accused to consider withdrawal of the charges under s 205 and the impact that will have on any future prosecution. I do not consider the issues surrounding the accused's health nor the sums already expended by him towards his defence, which are considerable, as matters that ought to inform my decision with respect to this application. I consider that such arguments are entirely apposite to an argument with respect to staying any future proceedings that might otherwise be brought by the Prosecutor. The notion that future proceedings are possible does not in my view support the argument that withdrawal of the charges under s 208 constitutes an abuse of process nor has it been demonstrated that to do so is oppressive or would otherwise bring the legal system into disrepute.
17. Accordingly, the application by the accused for an order dismissing the proceedings pursuant to s 205 and a certificate under s 205(2) cannot be sustained. The conduct of any prosecution is of course a matter for the prosecution and no authority has been cited which would suggest that this Court ought to prevent a prosecutor from withdrawing a charge.
18. In all of the circumstances the submissions made on behalf of the accused on this question are, with unfeigned respect, misconceived and must therefore fail.

Costs

1. The accused seeks costs against the prosecutor following the charges having been withdrawn. I am aware that the accused has incurred substantial costs in the preparation of his defence and that counsel had been briefed to appear at the hearing of this matter.
2. Whilst the accused was charged with 282 charges, they may be categorised as charges alleging conduct contrary to the provisions of three regulations, namely regulations 21(1)(a), 35(2)(a) and 35(3); in other words three separate types of conduct.
3. The CPA establishes what the court must consider when determining whether to make an award for costs in summary criminal proceedings [7] and provides an exclusive statement of the circumstances in which costs can be ordered. [8]
4. Section 212(1) provides "[a] court may award costs in criminal proceedings only in accordance with this Act".
5. Section 213 provides for the award of professional costs to an accused in summary proceedings where a prosecution is withdrawn or dismissed.
6. However, the discretion to award costs against a prosecutor acting in a public capacity is limited by s 214(1) which provides: 214 Limit on award of professional costs to accused person against prosecutor acting in public capacity (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any 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.
7. Thus s 214 provides a constraint upon the court's discretion to order costs against a public prosecutor. Therefore, the onus rests upon the accused to establish, to the required standard, that the application falls within the exceptions to the general rule laid down by s 214(1) that costs are not to be awarded in favour of the accused person. [9]
8. It should be noted first and foremost that any order for payment of costs is a different step from the order dismissing the matter and there is no requirement that there be any connection between the basis on which the accused person was acquitted and the facts and circumstances about which the court must be satisfied under s 214(1) before ordering costs. [10] In other words an award of costs does not flow automatically as a consequence of the charges being withdrawn.

Accused's submissions as to costs

1. I do not consider that it would be incorrect to describe the accused's application for costs as having been framed in a somewhat broad and globally directed way. The submissions are predicated on the basis that all of the exceptions laid down in each of s 214(1)(a), (b) and (c) apply and specifically that the prosecution failed to obtain evidence capable of satisfying the primary elements of the offences charged, namely that it failed to obtain evidence: 1. Identifying the accused as the person responsible for the sale or disposal of the stock in question in breach of r 21(1)(a); that accordingly there was no basis for preferring the charges; thus, the institution of proceedings was without reasonable cause and that continuation of the proceedings arose through a failure to investigate the relevant law; 2. Proving that the accused possessed information which was capable of falling within regulation 35(2)(a), namely that he failed to keep records relating to the arrival of goats on the property. In this regard the accused submits that the Prosecutor failed to establish that the accused possessed information capable of falling within that regulation and further that the accused was under no obligation to keep information which he never had before liability could attach to him; 3. Proving that there was a previous property for the purposes of providing a PIN necessary to establish a breach of regulation 35(3); and 4. Proving that ewes arrived at the property necessary to meet the requirements of regulation 35(2)(a).
2. In the light of these matters, the accused argues that: 1. The investigation had been conducted in an unreasonable or improper manner: par (a), 2. The proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner: par (b), 3. There has been a failure to investigate properly, or at all, relevant matters of which the police were aware suggesting that the accused might not be guilty: par (c).
3. Mr Thomas for the accused repeatedly asserts that the conduct of the proceedings was improper, in that a prosecutor acting reasonably would have identified the issues and discontinued the proceedings at an early date. I apprehend from this submission that he is also seeking to rely upon the exception contained within s 214(d) although that section was not specifically referred to in his initial submissions.
4. If my apprehension referred to in the preceding paragraph is correct, the accused submits that all of the exceptions contained within s 214(1) of the CPA have been established. The Prosecutor submits otherwise.
5. Mr Thomas also agitates that in any event, an agreement was made between the parties prior to the date fixed for hearing which is referred to in an affidavit sworn by the accused's solicitor and filed in support of the accused's application for costs. [11] I will refer to this submission later in this judgment.

The Prosecutor's submissions as to costs

1. At the outset, the Prosecutor rejects any assertion by the accused that an agreement to pay costs had been reached between the Prosecutor and the solicitors acting for the accused arising from their communications in the days leading up to the date when the Prosecutor withdrew the charges. I will likewise address that aspect later in this judgment.
2. The Prosecutor, in reply to the accused's submission that the prosecution conducted the investigation into the offences in an unreasonable or improper manner within the meaning of par (a), refers to the investigation conducted by the investigating officer and the extensive measures the prosecutor took in investigating the matter and making himself aware of the relevant legislation and rules. In addition, the learned prosecutor tendered statements prepared by investigating police. The Prosecutor submits that there is nothing contained within that material which points to any of the elements necessary for the investigation to be categorised as falling within that exception.
3. In so far as the question of whether the proceedings were initiated without reasonable cause or in bad faith or were conducted in an improper manner within the meaning of par (b), the Prosecutor submits that the electronically recorded interview conducted with the accused on 13 January 2016 and in particular the replies to [Q37] - [Q42] referring to the National Vendor Declaration, [Q28]-[Q57], [Q68, 69] and [Q91]-[Q100] suggest that the Prosecutor has adequately addressed that issue and that the accused's submissions with respect to these exceptions cannot be sustained.
4. Likewise the Prosecutor submits that with respect to the question of par (c), the question of liability under regulation 35(2)(a) is one of statutory construction for the purpose of determining liability under that regulation and that no unreasonableness on the part of the prosecutor has been demonstrated.
5. I now deal with the issues then that arise for determination.

Issue 1: Was the investigation into the alleged offences conducted by the prosecutor in an unreasonable or improper manner: s 214(1)(a)?

1. Counsel for the accused, Mr Thomas, submits that with respect to the charges referred to in sequences 28, 167, 252 and 274 alleging breaches of regulation 21(1)(a), the brief of evidence did not identify the accused as the person responsible for the sale or disposal of the stock in question.
2. Mr Thomas accordingly invites me to conclude that there was a failure by the prosecutor to reasonably investigate that matter.
3. The relevant regulation provides in effect that a person must not: 1. sell or otherwise dispose of any identifiable stock, or 2. buy or otherwise acquire any such stock, or 3. slaughter any such stock, or 4. send any such stock to any such location, or 5. transport or move any such stock, or 6. cause or permit anything referred to in paragraphs (a) - (e) to occur, unless the stock is identified in accordance with clause 19.
4. Clause 19 provides to the effect that identifiable stock is identified by attaching to the stock, in a manner approved by the Prosecutor-General, a permanent identifier that contains the relevant identification particulars of the stock or a special identifier (but only in certain circumstances).
5. With respect to sequences 28, 167, 252 and 274, the accused is charged with selling identifiable livestock which were not identified in accordance with clause 19 of the regulation prior to the sale.
6. I have examined the brief of evidence relating to each of those sequences. In each case the tax invoice relating to the relevant sale of goats appears to be issued by Ostrich Care Pty Ltd (the company) and quotes an ABN. However, Part A of the document headed "National Vendor Declaration (Goats) and Waybill (NVD)", included in the brief for all of the above mentioned sequences (except 252 which did not have one), refers to "Michael McNamara Ostrich Care P/L" as the owner of goats.
7. Under the heading "Declaration" the following appears where the full name and address of the declarant is required: "Michael McNamara Atholwood Bonshaw" as the owner or the person responsible for the husbandry of the goats which are the subject of the relevant transaction.
8. The brief also contains other material including a statement from Mr George Basha, a customer services manager of NLIS Ltd, the authorised administrator appointed pursuant to cl 45 of the regulation responsible for administering the NLIS data base to record data associated with the permanent identification and lifetime traceability of cattle sheep and goats.
9. Mr Basha's statement indicates that the accused and the company have certain property identification codes which are used for the purpose of data entry onto the system which is designed in part to track the movements of stock. The system in part is designed to facilitate tracing of potential outbreaks of disease among other things.
10. As I apprehend Mr Thomas's submission in so far as s 214(1)(a) is concerned, and with respect the sequences to which I have just referred, there was no basis for preferring the charges and that the continuation of the proceedings could only have occurred through a failure by the prosecutor to investigate the relevant law, that there was a "failure to reasonably investigate the matter" in that "a prosecutor acting reasonably would have identified the issue and discontinued the proceedings at an earlier date" (emphasis added). The submission is not particularised further.
11. In my view, the essential thrust of those submissions focuses upon the question of the adequacy of the investigation rather than upon the question of whether they were conducted in an unreasonable or improper manner as required by the legislation and the impact that had on the conduct of the proceedings.
12. In Halpin v Department of Gaming and Racing [2007] NSWSC 815 at [46], Hall J, when considering what was the predecessor to this section, made the following observations: "46 This provision, like that in s.70(1)(c), is concerned with investigations and not proceedings. The provision is directed to determining whether the investigation into an alleged offence was conducted "... in an unreasonable or improper manner". 47 This provision, accordingly, requires the plaintiff to establish that the investigation into the alleged offence under s.132 of the Act was such as to fall within s.70(1)(a). 48 The failure of proceedings does not of itself mean that the proceedings fall within s.70(1)(a) on question of costs arises. In Regina v Moore; ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470, (proceedings involving an unsuccessful challenge to the capacity of an industrial union to create an industrial dispute by service of a log of claims) Gibbs J (with whose reasons and conclusions Barwick CJ agreed) stated:- "The respondent ... has applied for costs on the ground that the proceeding was instituted by the prosecutor 'without reasonable cause' within the meaning of s.197A of the Act. In my opinion a party cannot be said to have commenced a proceeding "without reasonable cause", within the meaning of that section, simply because his argument proves unsuccessful." In general terms, the expression "unreasonable or improper manner" embraces the notion of the conduct of investigations in a way or by a method or a mode of procedure that grossly falls below the relevant standards applicable to the relevant type or class of investigation. In JD v DPP [2002] NSWSC 1092, a matter arising out of committal proceedings involving the alleged sexual abuse of young children, there had been a failure by police to conduct certain interviews of very young children according to established protocols which the Court determined had adversely affected the quality of police interviews. Hidden J, however, observed:- "I find it somewhat difficult to see that anything done by the police was unreasonable or improper as these words are commonly accepted to mean. The fact that an investigation does not come up to optimum expectations would not put it into a category of being unreasonable or improper unless it was grossly below optimum standards and I cannot say that that is the case here." (emphasis added)
13. In JD v DPP & Ors [2002] NSWSC 1092 [12] , at [31] it was observed: "Obviously, an investigation which fails to meet optimum standards is not necessarily unreasonable. Equally, however, it might fairly be classed as unreasonable even though it does not fall grossly below those standards. … The test is purely objective. To find that the conduct of the investigation of a particular case was unreasonable does not necessarily impugn the general competence, far less the integrity, of those responsible for it".
14. In relation to the conduct of the accused alleged to constitute breaches of regulation 35(2)(a), namely, that the accused failed to keep records relating to the arrival of goats, Mr Thomas submits that "the prosecution at no time sought to establish that the accused was in possession of information capable of falling within that regulation".
15. Likewise, in relation to those charges alleging that the accused failed to provide the PIN of the previous property, Mr Thomas urges me to accept that the prosecution failed to address the question of whether there had been a previous property and that that property had a PIN and that it had been provided to the accused.
16. In addition, the accused submits that in relation to sequence 11 alleging a breach of regulation 35(2)(a), the prosecution provided no evidence that ewes arrived at the property.
17. Mr Thomas invites me to find that the investigation had been conducted in an unreasonable or improper manner for the reasons outlined above.
18. The Prosecutor submits that the investigative steps undertaken suggest that the investigation was diligent and thorough and not otherwise undertaken as Counsel for the accused would have me accept.
19. Mr Thomas's submissions with respect to those many sequences alleging breaches of regulation 35(2)(a) focus upon the question of the adequacy of the investigation rather than upon any aspect which suggests that for the sequences concerned the investigation was conducted in an unreasonable or improper manner.
20. Apart from the general assertions made in the accused's submissions, no reference is made to any specific manner of the investigation which could be characterised as being unreasonable or improper as distinct from what the accused opines as what he would have me accept as the poor state of the evidence.
21. Clearly, from the communications made between the prosecutor and the accused's solicitor on 17 January 2017, the prosecutor was of the view that the prosecution was quite uncomplicated and unexacting. [13]
22. With respect to the question of reasonableness, I note that the test is whether, on the facts known to the informant at the time proceedings commenced, there was no substantial prospect of success. [14]
23. As to those charges alleging a breach of regulation 35(3), Mr Thomas submits that in so far as s 214(1)(a) is concerned the prosecution failed to establish that there had been a previous property and that such previous property has a PIN which was known to the accused so that ipso facto the investigation was conducted in a unreasonable or improper manner.
24. I make the same observations here as I have with respect to the other charges relating to the alleged conduct which is said to constitute breaches of the other regulations. I am not satisfied that the accused has been able to identify what part or parts of the investigation were conducted unreasonably or improperly as I apprehend the section requires and I am invited to make findings on what is submitted to be the failure of the prosecutor to include within the brief evidence sufficient to establish the elements of these offences. Those submissions in my view conflate deficiency, if indeed that be the case, with the question of whether the investigation was conducted by the prosecutor in an unreasonable or improper manner.
25. Accordingly, I am not satisfied that the accused has established that the investigation into any of the offences for which the accused was charged were conducted in an unreasonable or improper manner within the meaning of s 214(1)(a).

Issue 2: Were the proceedings initiated without reasonable cause or in bad faith or were they conducted by the prosecutor in an improper manner: s 214(1)(b)?

1. Mr Thomas submitted that in respect of a number of the charges brought against the accused alleging a breach of cl 21(1)(a), there was nothing in the brief which identified the accused as the person responsible for the sale or disposal of the stock and accordingly there was no basis for bringing the charges and thus such charges were brought without reasonable cause and a prosecutor acting reasonably would have identified the issue and discontinued the proceedings at an early date.
2. Mr Thomas submits that the charges should never have been mounted and is critical of the prosecutor for seeking to delay the court setting a hearing date on the second return date until after the brief of evidence had been served.
3. It goes without saying that a person charged with an offence may enter a plea of guilty thus obviating the need for the prosecution to compile a brief of evidence. The necessity to compile a brief of evidence normally arises upon a plea of not guilty being entered.
4. The Prosecutor submits that having investigated the matter it had determined that there was a prima facie case to bring before the court and that the test to be applied under this heading was to be answered by reference to the quality of the evidence which police had gathered with an eye not only to the enquiries which had been made but also to those which should have been made [15] . The Prosecutor further submits that a prima facie case had been disclosed on the material before police at the time charges were preferred.
5. Mr Thomas submitted that in relation to certain charges alleging a breach of cl 35(2)(a), the prosecution did not seek to establish that the accused possessed information falling within that regulation - a contention with which the Prosecutor strenuously refutes.
6. Indeed the Prosecutor refers specifically to the accused's replies to a series of questions contained at [Q37] - [Q42] of the record of interview conducted on 13 January 2016 in which the accused makes reference to receiving vendor declarations from sellers: Q37) And when they arrive, do they give you anything at that stage? A) Yeah, they, we go up to the yard. Q38) Yeah. A) And they would, they'd jump them off. Q39) Yeah. A) And they would generally give me the --- the vendor dec. Q40) Yeah. And when you say a vendor dec, you mean a, a National Vendor Declaration? A) Yeah, yeah, yeah, yeah, yeah. Q41) Yeah. OK. And do, when you, so as I said this, as I said prior to the recording, we're talking about things that have occurred in 2015. We're not going back any further than that. A) Right. Q42) 2015, when, have all the goats that you've purchased come with a, a National Vendor Declaration? A) Not all.
7. With respect to charges alleging breaches of cl 35(3), the Prosecutor also referred to the accused's replies contained in [Q28] - [Q57] and in particular replies to [Q91] - [Q100] where the accused admitted to never knowing he had to transfer particulars of goat purchases on the National Livestock Identification System and submitted that it is clear from what is revealed in that interview that the accused was in fact in possession of the relevant declaration and did not record them on the NLIS. At [Q91]-[Q100] of the record of interview the following exchange occurred: "Q) --- 'OK, when you, when you purchase goats, you said that you don't, you don't transfer them on the NLIS system, which is the National Livestock Identification System --- A) Yeah. Q) --- can you tell me why you don't do that? A) Well, I never knew I had to --- to be honest with you'."
8. There is nothing in any of the material to which I have been referred which points to the prosecutor acting in bad faith. Likewise I am not satisfied that there is anything specifically about the conduct of the proceedings which points to the proceedings having been carried out in an improper manner.
9. Once again, the thrust of the submissions made on behalf of the accused focus upon what appears to be the lacunae of material contained within the brief rather than upon the salient aspects which in this instance s 214(b) in my view seeks to address, namely whether the proceedings were initiated without reasonable cause or bad faith or were conducted in an improper manner.
10. In this respect, I find the remarks of Hall J in Halpin (supra) apposite: 56 The evidence does not establish that the defendant acted in bad faith. The evidence does not, in my view, support an inference of improper purpose. Nor is there any evidence that the proceedings were conducted by the defendant as prosecutor in an improper manner within the meaning of s.70(1)(b). 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) 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) 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) (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." 61 I do not consider in the present matter that it can be said that proceedings were doomed to failure or had no real prospects of success. The outcome of many proceedings turns upon the Court in question establishing the proper construction of statutory provisions and then applying them as so interpreted to the facts of a particular case. The fact that the defendant pursued the proceedings upon the basis of a broad interpretation of the legislation which was ultimately held to be incorrect, does not satisfy the requisite test in s.70(1)(b).
11. Likewise with respect to sequence 11 alleging a breach of cl 35(2)(a) in which 30 ewes are alleged to have arrived at the accused's property, Mr Thomas agitates that the lacunae in the brief in which there is no evidence of the ewes arriving at the property, leads inevitably to the conclusion that the prosecutor acting reasonably would have identified the vacuum in the prosecution case and terminated the proceedings much earlier. This is of course against a background where the accused's legal representation had argued for an early hearing date when the matter was before the court for the second time.
12. I am not satisfied to the required standard that the accused has demonstrated that the proceedings were: 1. initiated without reasonable cause or in bad faith; nor 2. conducted in a manner in which it can be shown to have been conducted improperly.
13. Accordingly, I am not satisfied in all of the circumstances that the accused has demonstrated the ingredients necessary to satisfy the exception falling within s 214(1)(b) in respect of any of the charges.

Issue 3: Did the prosecutor unreasonably fail to investigate (or to investigate properly) any relevant matter of which he or she was aware or ought reasonably to have been aware and which suggested either that the accused might not be guilty or that, for any other reason, the proceedings should not have been brought: s 214(1)(c)?

1. Was there an unreasonable failure to investigate relevant exculpatory matters? If a prosecution fails, and it emerges during the proceedings that the prosecution was aware of matters which suggested that the defendant may not be guilty of the offence, or for some other reason ought not to be prosecuted for the offence, and did not reasonably investigate those matters, an application for costs under this subsection may have been established.
2. As Hidden J observed in RB v DPP [2015] NSWSC 248: "The focus of (c) of s 214(1) is, of course, narrower than that of paragraph (a)….it is directed to whether there was an unreasonable failure to investigate any relevant matter which suggested that the plaintiff might not be guilty."
3. Mr Thomas cites the prosecutor, in her application to vacate the hearing date, identifying "insufficiencies in the prosecution case" as support for the proposition that the brief contained no material capable of satisfying the elements of the offences. The fact that the prosecutor, having considered the matter, came to the view that she did, namely that the prosecution may not succeed on the strength of the evidence as it then stood, is an elective decision in the exercise of the prosecutor's discretion.
4. This was a decision of the type that prosecutors are often regularly called upon to make. To make such a decision is not in my view to make the concession that the proceedings were not properly investigated or should not have been brought. In any event, it is, in my view, drawing a long bow to submit that I should find that there was no material in the brief capable of satisfying the elements of the offence or that the proceedings should not have been brought.
5. Mr Thomas also submitted that with respect to all charges there was a failure to reasonably investigate the matter for the reasons set out earlier. Apart from what the accused submits is a general failure to properly investigate the matter and that a prosecutor acting reasonably would have identified the issue (emphasis added) and discontinued the proceedings at an early date, the focus of Mr Thomas's submissions points once again to what the accused submitted is the inadequacy of the investigation rather than to the exception to which this subsection is directed.
6. The Prosecutor submits that in respect of the charges alleging a breach of cl 35(2)(a), Mr Thomas raises an issue which involves a question of statutory construction and therefore the question of liability of the accused is based upon how the regulation is to be construed. In reply, Mr Thomas simply says that as a matter of law the prosecutor was required to address the elements of the offences by reference to the evidence available to it and that had it done so the prosecution would not have been instituted, or, if instituted, discontinued at an early stage.
7. Hall J in Halpin (supra) addressed a matter involving breaches of the Gaming Machine Act 2001 in which similar submissions were agitated and observed at [62]: "In the present case, it could be said that the defendant failed to have sufficient regard to the fact that the fault which prevented "connectivity" was a fault in the GMIC and further that the GMIC formed a component part of the CMS and that had it done so the decision to prosecute would not have been made. Accordingly, the relevant issue arising under s.70(1)(c) in the present proceedings, in my opinion, is whether or not it could be said that the defendant, as prosecutor, "was or ought reasonably to have been aware of" those facts and that "... the proceedings should not have been brought". It is apparent from what has earlier been stated that the prosecution proceedings did not arise merely upon a set of facts which either did or did exist and constitute a contravention of the relevant provisions of the Act. The matter was not as straightforward for it involved a question of statutory construction as well as an assessment of factual matters. In those circumstances, and by reason of the fact that the question of statutory construction was a central issue, I do not consider that it can be said that the prosecutor has unreasonably failed to investigate a relevant matter within the meaning of s.70(1)(c) or that even if there was some failure to fully investigate a factual issue that the prosecution was still not arguable whatever the facts".
8. I find in the present case that the accused has failed to satisfy me that the provisions of s 214(1)(c) have been satisfied such as to bring him within ambit of entitlement to an order for costs under this provision.
9. Accordingly, the application under the ground contained within s 214(1)(c) must in my view fail.

Issue 4: Because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs: s 214(1)(d)."

1. The defendant must establish something about the conduct of the proceedings being an exceptional circumstance other than some matter referred to elsewhere in the section.
2. The mere fact proceedings are resolved in the defendants favour is not enough, as was observed in Fosse v DPP [1999] NSWSC 367:
3. Exceptional circumstances mean what it says as a matter of ordinary English. Mere proffering of no evidence is not enough, nor is mere reliance on exculpatory statements of the defendant. Neither is remarkable in itself or in combination: Dong v Hughes [2005] NSWSC 84.
4. In Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552; 78 A Crim R 368 Sully J observed at [561]: "...the words of the section require that an order for the payment of costs pursuant to s.52 of the [Land and Environment Court Act 1979] must be both just and reasonable. The order must be just in terms of the way in which it has been reached; and it must be reasonable in its actual terms."
5. There is no specific conduct identified in Mr Thomas's submissions nor do I find that there are any particular facts or matters concerning the conduct of the proceedings by the prosecutor which would in my view constitute a basis for attracting this provision.
6. The application by the accused for costs is opposed by the Prosecutor for the reasons set out in these submissions. I will firstly address the relevant law in relation to costs and what the Prosecutor submits the court should properly take into account in refusing costs. I will then respond to the points made by Mr Thomas in his application.
7. The Prosecutor submits that the CPA provides a code for the award of costs in summary criminal proceedings between ss 211 to 218 and that it is clear that the CPA provides an exclusive statement of the circumstances in which costs can be ordered: Wang v Farkas [2014] NSWCA 29 at 19. Section 212(1) states that a "court may award costs in criminal proceedings only in accordance with this Act".
8. I have had regard to the manner in which the proceedings were conducted by the prosecution and find nothing remarkable in that respect which would allow me to arrive at a determination that the prosecution conducted the proceedings attracting the provisions of s 214(1)(d).

Issue 5: Was there an agreement as to costs?

1. In the interests of completeness, I refer to the submission made by the accused's counsel that the prosecutor had agreed to dismissal of the charges with costs and that only quantum would be needed to be determined. The legislation would appear to be prescriptive - that the award of costs is discretionary but must only be awarded if the criteria set out in s 214(1)(a) - (d) have been met.
2. I have in any event considered the material relied upon by the accused [16] and the communications upon which the accused relies to support this submission. It is apparent on any reading of the material provided that the Prosecutor does not consider that the submissions made on behalf of the accused with respect to costs have merit. The substance of the conversations between the accused's solicitor and the prosecutor as deposed by the accused's solicitor on which the parties are ad idem must therefore remain in issue.
3. For this reason I do not consider anything turns upon those submissions referrable to the communications made between the accused's solicitors and the prosecutor shortly prior to 2 February 2017 and accordingly I am not satisfied that the prosecutor accepted liability for the accused's costs for these proceedings.

Issue 6: The residual power to award costs

1. Sgt Palmer submits that even if I am satisfied that one or more of the grounds set out in s 214(1)(a) - (d) are established, the court retains a residual discretion to award costs having regard to the wording of s 213 and in light of the observations made by Beech-Jones J in O'Brien (supra).
2. Mr Thomas submitted that such residual discretion does not exist and that the inclusion of the word 'may' in s 213 does not create a "discretion at large" (see Latoudis v Casey (supra) at 534 and 569) and that once any of the preconditions in s 214 (1) have been met the discretion is to be exercised in favour of costs.
3. That submission must in my view fail in light of the observations of Hidden J in RB v DPP [2015] NSWSC 248 at [50] in which he agreed with the submission made by counsel for the Prosecutor in that matter that the decision to award costs remained a discretionary exercise even if any of the bases for an award of costs had been established under pars (a), (c) or (d) of s 214(1).

Issue 7: Is it just and reasonable to award costs in favour of the accused?

1. In circumstances where I may have found one of the exceptions contained within s 214(1) made out by the accused, it would remain the position that the court must in any event be satisfied, on one of the grounds, that it is "just and reasonable" to award costs.
2. The meaning of "just and reasonable" was considered in Caltex (supra): The requirement that such an order must be both just and reasonable entails both that there will be a fair hearing on the merits of the application for the order, and that the terms of the order finally made will be in themselves reasonable. The judge must specify the quantum of the costs order. The judge, in so reaching a final decision, must act, of course, judicially. This must entail, at the very least, a clear, and sufficiently exposed, process of reasoning to a quantum of costs. A result which is, in truth, nothing more than an intuitive stab in the dark is neither just nor reasonable.
3. The defendant's conduct in relation to the investigation or conduct of proceedings may be a factor to be considered when deciding whether it is "just and reasonable" to exercise any such discretion.
4. In Latoudis v Casey (1990) 170 CLR 534, Mason CJ said at 544: However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor. I agree with Toohey J that, if a defendant has been given an opportunity of explaining his or her version of events before a charge is laid and declines to take up that opportunity, it may be just and reasonable to refuse costs. Likewise, if a defendant conducts his or her defence in such a way as to prolong the proceedings unreasonably, it would be just and reasonable to make an award for a proportion of the defendant's costs. [17]
5. The Prosecutor submitted that the accused's solicitors were not prepared to make any representations in support of the contention that the prosecution would fail. Reference is made to the letter from the accused's solicitor dated 19 January 2017 (following a call from the prosecutor) [18] as well as an email from Mr Thomas. [19]
6. I note the observations of Toohey J in Latoudis (supra) to the effect that whilst the accused is entitled to refuse an explanation to police, if that explanation is refused, he can hardly complain if the court refuses to order costs in his favour when an explanation might have avoided the prosecution.
7. In my view and with unfeigned respect to the accused's counsel and solicitors, to adopt the position that the prosecution will fail and that the gaps in the proofs necessary to establish each element of the charges for which the accused stands charged prior to closing the prosecution case (which of course is their right) does not assist the accused's position that significant costs had been incurred in preparing the defence when effective communication may well have enabled proceedings to have ended at an earlier date.
8. Counsel for the accused has also made an application for costs associated with the costs application itself, relying upon s 214(1)(d) citing 'exceptional circumstances' making it 'just and reasonable' that the prosecutor pay the accused's costs of the costs application, namely that in opposing the costs application and maintaining that opposition, the Prosecutor was acting unreasonably by failing to consider the effect of the concession made in paragraph [44] of her submissions that the brief did not contain evidence capable of proving the elements of the offences charged. The salient paragraph of her submissions to which he refers, reads: "44. It is submitted that the investigation by the prosecutor Senior Constable Fenner into the alleged offences was conducted thoroughly. If it is accepted that there is a gap in the evidence required at law to substantiate the charges, then this does not necessitate that costs follow".
9. That paragraph is followed by [45] which reads: "45. In the case of O'Brien v Hutchinson, it was accepted by the magistrate that there was no prima facie case. The prosecution were unable to prove five separate matters, [20] and no costs were awarded. On appeal His Honour's conclusion did not reveal any misconstruction of subsection 214(1)(b)."
10. I do not find the concession to which Mr Thomas refers was in fact made and in any event what concession there might be (which I cannot find) is qualified by the paragraph [45] which follows it.
11. Mr Thomas further submitted that the prosecutor acted unreasonably "in seeking to raise, in her submission, matters not in evidence". He does not elucidate further. This submission is unhelpful in assisting me to determine the merits of the accused's application.
12. Mr Thomas, in the final paragraph of his further submissions (dated 4 May 2017) makes the following submission concerning the exceptional circumstances to which I have made reference at paragraphs [113] above which is somewhat illuminating: "6. The circumstances identified in point 5 above as "exceptional circumstances" are not circumstances that fall within (a), (b), (c) of s 214(1) CPA because those subsections relate to unreasonable conduct (etc.) relating to the substantive proceedings".
13. Clearly, s 214(1)(a) and (c) relate to the investigation and not to the substantive proceedings and suggests that in respect of those subsections Mr Thomas may well have fallen into the error identified in Clifton Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 (where the court observed in that case that the failure to call a witness related to the manner in which the proceedings were conducted, not to the investigation) and De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 (a case where the court was satisfied that the magistrate had focused upon the impact that the son's evidence (which had not been obtained,) might have had on the conduct of the proceedings).

Costs in Criminal Cases Act 1967

1. In submissions in reply, the Prosecutor made reference to the fact that the authorities relied upon by the accused related to an application for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) rather than with respect to the CPA. In his further submissions in reply, Mr Thomas opines that the issues to be determined under both pieces of legislation are the same (my emphasis).
2. Nothing further is put in support of that submission nor how the two Acts are directed towards the same issues. On the material before me I am unable to accept that submission.

Determination

1. This has not been an easy matter to resolve. I have received and considered lengthy written submissions from both parties including further additional material lodged with the registry with leave and noted the authorities to which I have been referred. I am also mindful of the significant costs incurred by the accused associated with defending the charges. Whilst it is not necessary for me to determine quantum in light of the fact that I have not found that the accused has established any of the exceptions entitling him to an award of costs I consider that the remarks of Rares J in Armstrong Scalisi Holdings Pty Ltd v Piscopo (Trustee), in the matter of Collins [2017] FCA 423 (particularly at [20] - [28]) are particularly apposite.
2. Nevertheless, I must be guided in my determination of the issue at hand by the relevant provisions within the CPA and the authorities to which I have been referred.

Orders

1. The application for an order dismissing the proceedings pursuant to s 205 and the issue of a certificate pursuant to s 205(2) is refused.
2. The application for costs is refused. Local Court Magistrate Michael O'Brien Inverell Local Court 18 May 2017 Note: This decision was upheld on appeal to the NSW Supreme Court in McNamara v Fenner [2017] NSWSC 1746.

Endnotes

1. Affidavit, Elizabeth Ramsay,12 April 2017
2. Affidavit of E. Ramsay (supra)
3. Silbert v DPP (WA) (2004) 205 ALR 43; 78 ALJR 464; [2004] HCA 9; DC Pearce and RS Geddes, Statutory Interpretation in Australia, 5th ed, Butterworths Sydney, 2001 [4-34] - [4-35]
4. Jago v District Court (NSW) (1989) 168 CLR 23 per Mason CJ.
5. Affidavit, Elizabeth Ramsay, 23 February 2017 (annexing medical reports of Dr Kenneth F. Hossack dated 20 June 2016)
6. Like the 'Sword of Damocles'
7. See ss 211 to 218 of the CPA
8. Wang v Farkas [2014] NSWCA 29 at 19
9. Fosse v DPP [1999] NSWSC 367 at [16]
10. R v Hunt [1999] NSWCCA 375
11. Affidavit, Elizabeth Ramsay, 23 February 2017
12. A case concerning s 41A of the Justices Act 1902 being legislation prior to s 214 of the CPA.
13. Affidavit, Elizabeth Ramsay, 23 February 2017 at para 9
14. Canceri v Taylor (1994) 123 ALR 667 at 676 (per Moore J)
15. JD v DPP [2000] NSWSC 1092 as enunciated by Hidden J at [28]
16. Affidavit of E. Ramsay (supra)
17. See also Toohey J at 565.
18. Affidavit of E. Ramsay (supra), at Annexure A
19. Supra, at Annexure G
20. O'Brien v Hutchinson [2012] NSWSC 429 at [32] 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: 18 May 2018