Secretary, Department of Planning, Industry and Environment v Merrywinebone Pty Ltd; Harris

Land and Environment Court (NSW)|2023-07-14|Before: Robson J

Solicitors: In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Department of Planning, Industry and Environment (Prosecutor) Thomson Geer (Defendants) File Number(s): 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Publication restriction: Nil

Introduction and outcome

Kenneth Bruce Harris and Merrywinebone Pty Ltd ('Merrywinebone') (collectively, the 'Harris defendants') each successfully defended before this Court eight criminal charges relating to the clearing of native vegetation. In a judgment delivered on 23 December 2022, I held that neither Mr Harris nor Merrywinebone was guilty of the charges respectively laid against them, and accordingly that each of the summonses should be dismissed: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153 ('primary judgment').
The Harris defendants now seek an order that the Secretary, Department of Planning, Industry and Environment ('prosecutor') pay their professional costs of the proceedings pursuant to s 257C(1) the Criminal Procedure Act 1986 (NSW) ('Criminal Procedure Act'). The prosecutor claims that the legal and factual burden justifying such a costs order is not satisfied and that the Court should dismiss the Harris defendants' application for costs.
For the reasons that follow, I make no order as to the costs of the proceedings.

Background

Whilst these reasons assume familiarty with the primary judgment, I provide for context a brief summary of the salient facts of the matters.
The substantive proceedings related to eight separate land clearing events that occurred between December 2016 and January 2019 and involved the removal of native vegetation on a property known as "Boolcarrol". Boolcarrol occupies over 34,000ha and is located north-west of Narrabri in the State of New South Wales. At the time that the charges were alleged to have taken place, Boolcarrol was owned by Mr Harris and Ronald Greentree as tenants in common and the property was farmed (which included grazing and farming/cropping) by a partnership trading as "Greentree Farming". Greentree Farming had four partners, namely Mr Harris (1%) and Mr Greentree (1%), and their respective companies Merrywinebone (48%) and Auen Grain Pty Ltd (ACN 101 059 769) ('Auen Grain') (50%).
On 26 August 2019, the prosecutor commenced 32 proceedings by way of eight summonses against each of Auen Grain; Mr Greentree; Merrywinebone; and Mr Harris in relation to the land clearing events.
At the time of the commencement of the proceedings, the prosecutor had obtained records of interview from Mr Harris, as well as those of Nicholas Greentree on 5 July 2019; David Brown on 19 June 2019; Jacob McCumstie on 5 July 2019; Matthew Gersbach on 5 July 2019; and Matthew Berry on 5 August 2019. The prosecutor had not however interviewed Mr Greentree.
Due to the timing of the eight alleged clearing events, six charges were brought against each defendant pursuant to s 12 of the Native Vegetation Act 2003 (NSW) ('Native Vegetation Act') (which was repealed on 25 August 2017) and two charges were brought pursuant to s 60N of the Local Land Services Act 2013 (NSW). In relation to each of the charges, the prosecutor relied, inter alia, upon deeming provisions, being s 44 of the Native Vegetation Act and s 13.29 of the Biodiversity Conservation Act 2016 (NSW) ('Biodiversity Conservation Act') which provided that the "landholder" of any land on which native vegetation is cleared is taken to have carried out the clearing. These provisions could have been rebutted by proof that the clearing activities the subject of the charges were carried out by another person, and that the landholder did not cause or permit the carrying out of such activities.
On 3 December 2019, prior to the substantive hearing, the prosecutor further sought and obtained orders pursuant to s 29(2) of the Criminal Procedure Act that the 16 proceedings involving the Harris defendants be heard and determined together with the 16 proceedings against Mr Greentree and Auen Grain Pty Ltd ('joint trial application'). The Harris defendants had opposed orders for a joint trial.
The hearing of all 32 charges proceeded concurrently over 14 days and, on 23 December 2022, I gave judgment in respect of the 32 charges, finding that Mr Greentree and Auen Grain were each guilty of the eight offences as charged. I also held that neither Mr Harris nor Merrywinebone were guilty of the eight offences respectively laid against them on the basis that, although both were found to be landholders, neither caused nor permitted Mr Greentree (nor Auen Grain) to carry out the unlawful clearing. Accordingly, each of the summonses against the Harris defendants was dismissed.

Statutory Framework

By virtue of s 41 of the Land and Environment Court Act 1979 (NSW), this Court may award costs in relation to Class 5 proceedings before it in accordance with the provisions of Div 4 in Pt 5 of Ch 4 of the Criminal Procedure Act.
Relevantly, s 257C of the Criminal Procedure Act outlines when professional costs may be awarded to the accused: 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 …
In circumstances where a prosecutor acts in a public capacity, when prosecuting charges, the Court's discretion to award costs under s 257C is subject to s 257D, which requires satisfaction of one or more of four specified circumstances: 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. …

Evidence

For the purpose of this costs application, the Court was referred to various aspects of the evidence before the Court in the substantive proceedings, and as detailed later in this judgment, in particular to the record of interview of Mr Harris of 7 August 2019. Of particular relevance in Mr Harris' record of interview are the following statements from Mr Harrison, solicitor for the Harris defendants (further considered in my consideration): 1. Mr Harris did not have any direct knowledge of clearing activities at Boolcarrol between May 2017 and April 2018 as Mr Greentree was responsible for the day-to-day management of operations of Greentree Farming until that was brought to his attention by the Department of Planning, Industry and Environment ('DPIE') investigation. 2. Mr Harris visited Boolcarrol infrequently, and recalled having attended at most on three occasions between May 2017 and April 2018.
The Harris defendants also relied upon evidence before me in the substantive proceedings of an email dated 16 June 2017 which was sent by Mr Harris to Mr Greentree in which Mr Harris stated, "I want to reinforce my view that I still can't support any clearing activities on our properties".
In addition to references made to their affidavits read in the substantive proceedings, the prosecutor read the affidavits of Bradley Thomas Wade sworn 31 March 2023 and Gregory Dean Campbell affirmed 30 March 2023.
In his affidavit, Mr Campbell, a (then) senior team leader at the DPIE who had been involved in the investigation in relation to the alleged clearing of native vegetation at Boolcarrol, deposed to details of his investigation into the Harris defendants and Mr Greentree and Auen Grain. In particular, Mr Campbell deposed to the following correspondence with Mr Greentree (and Auen Grain): 1. An email dated 20 March 2019 was sent to Michael Giugni, solicitor, enquiring whether he acted for Mr Greentree and whether he was able to receive correspondence on his behalf; and an email in response dated 23 March 2019, wherein Mr Giugni confirmed that he did act for Mr Greentree and could receive correspondence on his behalf. 2. An email dated 15 July 2019 sent to Mr Giugni attaching a notice under s 12.19 of the Biodiversity Conservation Act requiring Mr Greentree to attend an interview to answer questions in relation to the investigation by the DPIE into the alleged clearing events. The notice required Mr Greentree to provide the details of a nominated time and place by 2pm on 25 July 2019. 3. An email dated 1 August 2019 sent to Mr Giugni requesting an update on Mr Greentree's availability for an interview. On 2 August 2019, Mr Giugni responded by email stating that Mr Greentree would be available from 26 August 2019. Mr Giugni originally advised that his client could attend the interview on 18 August 2019, and then clarified in an email later that day that he had meant to say 28 August 2019. 4. An email dated 6 August 2019 sent to Mr Giugni enquiring whether Mr Greentree would be available on 26 August 2019 for an interview. 5. An email dated 14 August 2019 sent to Mr Giugni requesting an update on Mr Greentree's availability for an interview. Mr Giugni responded shortly thereafter that he may have a better idea of his client's availability the following day. 6. An email dated 20 August 2019 sent to Mr Giugni requesting an update on Mr Greentree's availability for an interview. Mr Giugni responded by email dated 21 August 2019 and indicated that Mr Greentree would be available for an interview on 28 August 2019 at around 10 or 11am.
Mr Campbell further deposed that he was informed on 26 August 2019 by a senior legal officer in litigation at the DPIE that proceedings against the Harris defendants and Mr Greentree (and Auen Grain) had been commenced and accordingly, he sent an email to Mr Giugni on the same day, informing him that Mr Greentree was no longer required to attend the scheduled interview.
Similarly, Mr Wade deposed in his affidavit to his correspondence with Mr Greentree during the course of the investigation by the DPIE (then, the Office of Environment and Heritage). He indicated that on or around 15 October 2018 he caused a letter to be sent to Mr Greentree (by post and email) inviting him to participate in a voluntary record of interview by 26 October 2018 at a time, date and location convenient to him in relation to the investigation of the alleged clearing at Boolcarrol. He indicated that he did not receive any response from Mr Greentree.
The Harris defendants tendered a bundle of documents dated 18 April 2018 (Ex A), containing: 1. A notice to provide information and/or records pursuant to s 12.8 of the Biodiversity Conservation Act dated 12 March 2018 addressed to Mr Harris which related to the DPIE investigation of the alleged clearing events. 2. Correspondence on behalf of the Harris defendants dated 18 April 2018, which provided information and records in response to the DPIE notice of 12 March 2018.
In addition to detailed written submissions, each party made oral submissions at the hearing on costs on 14 July 2023. On this occasion, Mr Campbell was cross-examined.

The Harris defendants' position

The Harris defendants rely on s 257D(1)(a), (b), (c) and (d) of the Criminal Procedure Act and allege both unreasonableness and improper conduct by the prosecutor both in relation to the investigation of the alleged clearing events and the conduct of the proceedings.
First, the Harris defendants submit that the prosecutor failed to make proper and necessary enquiries to support its case ahead of the laying of the charges, including interviewing Mr Greentree or gathering evidence otherwise supporting (or challenging) the reliability and accuracy of Mr Harris' answers in his record of interview. In particular, senior counsel for the Harris defendants drew attention during cross-examination of Gregory Campbell to the delay in serving Mr Greentree with a notice to attend a compulsory interview despite having accepted that his evidence would be material to the investigation. This delay resulted in Mr Greentree not being able to be interviewed before the limitation period to commence the proceedings lapsed. The Harris defendants submit that if Mr Greentree had been interviewed, he would have given evidence in relation to Mr Harris' lack of involvement in the clearing. Bearing in mind the anticipated materiality of Mr Greentree's evidence, the prosecutor ought to have acted in a more timely manner, and interviewed Mr Greentree before the limitation period lapsed. As such, the failure to interview him therefore amounted to, and was indicative of, unreasonable conduct in the investigation and satisfies s 257D(1)(a) of the Criminal Procedure Act.
Secondly, the Harris defendants submit that Mr Harris' record of interview, and Mr Harris' email of 16 June 2017 (noted at [15] above) were sufficient bases for the prosecutor to be reasonably aware of the prospect that they were not guilty of the alleged clearing events and that the charges against them should not have been brought. These matters could and should have adequately been investigated by interviewing Mr Greentree, who, the Harris defendants submit, would have confirmed the Harris defendants' lack of involvement in the clearing. The Harris defendants submit that such a failure to interview a witness that would have given exculpatory evidence is sufficient to satisfy s 257D(1)(c) of the Criminal Procedure Act.
Thirdly, and continuing to rely on the prosecutor's failure to interview Mr Greentree, the Harris defendants submit that, in the absence of evidence supporting its reliance on the presumption in s 44 of the Native Vegetation Act and s 13.29 of the Biodiversity Conservation Act to establish guilt, the prosecutor could not have proved that the Harris defendants had carried out, or authorised the carrying out, of the clearing the subject of the charges. In particular, the prosecutor did not have any evidence casting doubt on the accuracy of Mr Harris' evidence in his record of interview. In addition, the Harris defendants submit that the evidence provided by Mr Harris that the clearing had been carried out by someone else, and supported by his email dated 16 June 2017, without proof to the contrary, were sufficient to discharge the exculpatory statutory onus of proof and therefore to have the charges dismissed. In these circumstances, the proceedings against the Harris defendants had no substantial prospect of success and were initiated without reasonable cause thereby enlivening s 257D(1)(b) of the Criminal Procedure Act. Senior counsel for the Harris defendants also suggested that, in the absence of any prospect of success, it can be inferred that one of the cause factors for commencing the proceedings was the possibility that Mr Harris would give evidence against Mr Greentree, or alternatively, that Mr Greentree would point a finger to him. This would also not constitute reasonable cause for commencing the proceedings.
Fourthly, the Harris defendants submit that the prosecutor inappropriately sought a joint trial of the substantive hearing of the charges against Mr Greentree and Auen Grain. Further, in circumstances where the prosecutor was aware that the Harris defendants actively opposed orders being made to facilitate a joint trial; and second, had made submissions pre-emptively indicating to the Court (constituted by Pain J) that they would not deploy a cut-throat defence directed at Mr Greentree. Despite this indication, the prosecutor nevertheless maintained the charges against the Harris defendants and prosecuted the charges jointly. The Harris defendants further submit that a joint trial would have been preferred by the prosecutor as it advantaged the prosecutor's case against Mr Greentree and Auen Grain, and left open the possibility that evidence against the Harris defendants would come to light in the defence of Mr Greentree and Auen Grain. The Harris defendants submit that not only was this course of conduct inappropriate, it also lengthened proceedings which would have otherwise been much shorter and thereby cheaper. Together with the matters raised in relation to subss (a), (b) and (c), the prosecutor's conduct in seeking that the matters be tried together (and the resulting orders), constitute exceptional circumstances relating to the conduct of the proceedings that suggest it would be just and reasonable to award costs under s 257D(1)(d) of the Criminal Procedure Act.

The prosecutor's position

The prosecutor submits that no costs order ought be made in the Harris defendants' favour insofar as the matters relied upon are neither accurate nor sufficient to make out the circumstances in s 257D(1) of the Criminal Procedure Act.
In relation to s 257D(1)(a), the prosecutor disputes the proposition that not interviewing Mr Greentree amounted to unreasonable conduct in the investigation. Whilst a prosecutor's failure to interview an eyewitness may on occasion amount to unreasonable conduct (Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 ('Cliftleigh Haulage') at [21], [28]-[29]), the Court would not make such a finding in the present circumstances given that Mr Greentree was a codefendant who had elected to give evidence at the substantive hearing, and that interviews had in fact been undertaken with other potential eyewitnesses. Moreover, to the extent that Mr Greentree was not interviewed during the investigation of the alleged clearing events, the prosecutor emphasises that multiple attempts had in fact been made to interview him and that notices were issued requiring him to provide information and/or records in relation to matters the subject of the DPIE investigation. In particular, counsel for the prosecutor indicated that a notice to attend a voluntary interview had been issued to Mr Greentree on 15 October 2018, followed by a notice to attend a compulsory interview on 15 July 2019. As such, it could not be said that there was a failure to investigate, but rather there was an absence of response in respect of the matters which the prosecutor sought to investigate.
The prosecutor further submits that proceedings will only be instituted without reasonable cause within the meaning of s 257D(1)(b) of the Criminal Procedure Act if, objectively assessed on the facts apparent at the time of initiating the proceedings, they had no real prospects of success. In circumstances where the prosecutor had evidence to establish that the Mr Harris was a landholder and thereby that he was, in accordance with the deeming provisions, responsible for the clearing, it could not be said that the proceedings were initiated without reasonable cause. Such evidence included, inter alia, title searches for Boolcarrol and the partnership agreement.
The prosecutor also emphasises this Court's findings in the primary judgment, consistent with its case, that each of the Harris defendants was a landholder in accordance with the definitions in s 4(1) of the Native Vegetation Act and s 1.6 of the Biodiversity Conservation Act. In addition, at that stage, Mr Greentree's evidence that Mr Harris had not been directly involved in the clearing was not known, and the Harris defendants' reliance on it to retrospectively argue that there was no reasonable grounds for commencing the proceedings is inappropriate. Rather, the evidence available at the time was sufficient to consider that the statutory defence would not be made out.
So far as concerns that part of s 257D(1)(b) of the Criminal Procedure Act directed at improper conduct of the proceedings, citing French CJ in Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 at [29]-[30], the prosecutor stresses that the threshold for a finding of impropriety is high and requires proof of conduct which is "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong". The prosecutor submits that the Harris defendants have not established such allegations. In particular, the failure to interview Mr Greentree does not establish that the proceedings have been conducted in an improper manner.
Similarly, the prosecutor submits that s 257D(1)(c) of the Criminal Procedure Act is not made out. The entirety of the investigation must be considered when assessing, for the purpose of the subsection, whether there has been a failure to investigate a relevant matter. Although the Harris defendants focus their submissions around the failure to interview Mr Greentree, counsel for the prosecutor submits that other steps were in fact taken and that enquiries were made to investigate the extent (if any) of Mr Harris' involvement in the alleged clearing events the subject of the charges. Such steps, including the issuing on 12 March 2018 of a notice requiring Mr Harris to provide information in relation to, inter alia, his involvement in the management of Boolcarrol, and his knowledge and awareness of the clearing activity. The notice also asked Mr Harris whether he had given any instruction, authorisation or approval for the clearing activities. Counsel for the prosecutor submit that this constituted an enquiry into matters that were raised by Mr Harris in his record of interview.
In any event, the prosecutor rejects the proposition that it should have been aware that the evidence that would have been given by Mr Greentree if he had been interviewed would be exculpatory. Indeed, counsel for the prosecutor highlighted Mr Greentree's response to a notice to provide records and/or information issued by the DPIE, whereby he indicated, inter alia, that "no direction, instruction, authorisation or approval was provided by Mr Greentree except for the implied approval to put out bush fires." This response was said to be inconsistent with evidence later given at the substantive hearing. Therefore, it cannot be inferred that he would have given exculpatory evidence in favour of Mr Harris during the investigation merely because he did so at the trial.
The prosecutor also submits that the alleged failure to interview Mr Greentree, and therefore to investigate relevant matters, could be better characterised as an absence of a response from Mr Greentree to the prosecutor's attempts for interview. The prosecutor emphasises that there was nothing, in any event, to indicate that an interview with Mr Greentree would have yielded evidence that the Harris defendants were not guilty. Further, the Harris defendants have not otherwise relied on any other evidence to suggest that they were not guilty, that the prosecutor failed to investigate.
Finally, to the extent that the Harris defendants rely on the matters said to give rise to costs under s 257D(1)(a), (b) and (c) of the Criminal Procedure Act, for the purpose of s 257D(1)(d), the prosecutor submits that the words "other exceptional circumstances" plainly require the defendants to establish something other than matters raised under the earlier three limbs of the section. In addition, the prosecutor stresses that subs (d) only relates to the conduct of the proceedings, as opposed to conduct that occurred before the proceedings were initiated, such that matters caught by subss (a) and (c) cannot be relied upon.

Consideration

The Harris defendants bear the onus of establishing that any one of the four matters they have relied upon pursuant to s 257D(1) is satisfied: Port Macquarie-Hastings Council v Lawlor Services Pty Limited; Port Macquarie-Hastings Council v Petro (No 7) [2008] NSWLEC 75; (2008) 159 LGERA 87 at [65], citing Fosse v Director of Public Prosecutions [1999] NSWSC 367 ('Fosse'). If one of the subsections is held to apply, then costs will be awarded under s 257C of the Criminal Procedure Act.

Conduct of the investigation

Both subss (1)(a) and (c) concern the investigation of an offence, and will be considered collectively. For the reasons that follow, I do not consider the requirements of either subsection to be satisfied.
In relation to s 257D(1)(a) of the Criminal Procedure Act, the test for whether an investigation was conducted in an unreasonable manner is purely objective and does not require proof that the investigation fell "grossly below optimum standards": JD v Director of Public Prosecutions [2000] NSWSC 1092 at [31]. In determining whether the investigation was conducted in an unreasonable manner, I consider it appropriate to take into account the steps taken by an investigator in light of what reasonably was within the knowledge of that investigator at the time having regard to statements made and information conveyed during the investigation: Director-General, NSW Department of Industry and Investment v Coomes [2012] NSWLEC 251 ('Coomes') at [61].
The Harris defendants emphasise that a prosecutor's failure to interview an eyewitness has, on occasions, been held to satisfy the test: Cliftleigh Haulage at [21], [28]-[29]. Whilst I accept that Cliftleigh Haulage provides an example of the type of conduct that may result in an unreasonable investigation, I do not consider that it establishes that a failure to interview a witness necessarily enlivens s 257D(1)(a) of the Criminal Procedure Act. Rather, the reasonableness of an investigation needs to be assessed by reference to the circumstances of each particular case. This is illustrated by Coomes at [59], where the failure to interview a witness was not considered, in the circumstances, to taint the investigation with unreasonableness. As such, I am of the view that it is necessary to consider the failure to interview Mr Greentree in light of the material available to, and enquiries made by, the prosecutor in order to assess whether the investigation was conducted in an unreasonable or improper manner.
It should also be kept in mind that the charges that were investigated concerned the alleged clearing of native vegetation under a deeming provision which provided that in circumstances where relevant clearing is able to be established, and a person is found to be a landholder of the land upon which the clearing was conducted, that person is taken to be responsible. In the present circumstances, the investigation to a large extent focused on the carrying out of the clearing and the identification of the landholders. The investigation proceeded in the knowledge that Boolcarrol (which was approximately 34,000ha) was owned by Mr Harris and Mr Greentree as tenants in common and was being farmed by the Greentree Farming partnership which commenced in 2008. The context for the offending and the legal and practical relationship between the defendants in turn bore upon the enquiries to which the prosecutor turned its mind.
Bearing the above context in mind, it is clear that Mr Greentree was a relevant witness to the investigation of the Harris defendants' involvement in the alleged clearing. However, although Mr Greentree was not interviewed, it cannot be said that the prosecutor did not attempt to do so in circumstances where he was served with two notices to answer questions in relation to the investigation on 15 October 2018 and 15 July 2019. I consider that the steps taken by the prosecutor in this regard suggest that attention was given to Mr Greentree's evidence. In my view, this militates against a finding that any omission to interview Mr Greentree was unreasonable in the relevant sense.
In addition, and by contrast to Cliftleigh Haulage, noting that there were eight separate clearing events, the relevant witness, Mr Greentree, was not an eyewitness, nor the sole witness in the prosecutor's case. Rather, he was a suspect in the prosecutor's investigation, and as referred to at [7] above, other witnesses were interviewed by the DPIE, including David Brown, chief financial officer of Greentree Farming; Nicholas Greentree, the son of Mr Greentree and the farm manager of Boolcarrol from approximately July 2016; and employees of Greentree Farming including Jacob McCumstie, Matthew Gersbach, and Matthew Berry. In addition to my above finding that the prosecutor had in fact sought to interview Mr Greentree (and consequently that it had not acted unreasonably), I find that it would, in any event, not have been unreasonable to give a lesser focus to Mr Greentree's evidence in circumstances where he was a suspect in the alleged clearing events. It was entirely appropriate to investigate the extent of Mr Greentree's involvement in the management of the farm (and in the clearing activities) by interviewing employees of Greentree Farming. I find that this mitigates the failure to obtain evidence from Mr Greentree.
Despite my above comment, I note that there is nothing in the evidence that suggests, if it be otherwise submitted by the Harris defendants, that the failure to interview Mr Greentree was a deliberate forensic decision. Indeed, the evidence that an interview was sought on a number of occasions, is to the contrary.
Finally, I do not consider that any alleged delay in inviting Mr Greentree to attend a compulsory interview resulted in the investigation having been conducted unreasonably. Again, Mr Greentree had been issued notices to provide information and/or records, and had been invited to attend a voluntary and then a compulsory interview. Communications between the investigator and Mr Greentree's solicitors illustrate a consistent effort on the part of Mr Campbell to obtain evidence from him, at least from 20 March 2019. Whilst I accept that, given the time remaining to commence proceedings was running out, it may have been preferable for the investigators to act promptly in securing a compulsory interview with Mr Greentree, I am mindful that an investigation is not unreasonable merely because it was not conducted at an optimal level.
On balance, I find that the investigators attempts to interview Mr Greentree militates against a finding of unreasonableness.
While there is some overlap between s 257D(1)(a) and (c) of the Criminal Procedure Act, the latter pertains to an additional requirement in relation to the consequences of an unreasonable failure to investigate (namely, that the proceedings should not have been brought). It further requires the existence of a "matter" which the prosecutor was aware (or ought reasonably to be aware) of and which suggested either that the Harris defendants might not be guilty or that, for any other reason, the proceedings should not have been brought: Cliftleigh Haulage at [20]. Commentary by Mr Harris in his record of interview that he had not caused or permitted the clearing (the "matter" primarily relied upon by the Harris defendants) does not, in my view, necessarily negate the facts otherwise known to the prosecutor regarding the conduct of the farming activities at Boolcarrol which suggested that the Harris defendants might be guilty.
The Harris defendants also rely upon an email dated 16 June 2017 (noted at [15] above) as an exculpatory matter of which the prosecutor was aware. While I accept that, on its face, the email has potential to corroborate Mr Harris' statement in his record of interview that he did not cause or permit the clearing, its persuasiveness is to an extent mitigated by the fact that the email was sent after the first clearing event was alleged to have occurred (being between 29 December 2016 and 8 May 2017).
In any event, I consider that even if there were potentially exculpatory matters raised during the investigation, the prosecutor had in fact investigated the extent of Mr Harris' involvement in the clearing (including by causing or permitting someone to carry it out) and the possibility that someone else carried out the clearing, including by issuing notices to produce information and/or records to Mr Greentree and Mr Harris, and by interviewing employees of Greentree Farming. To this extent, I reject the Harris defendants' suggestion that interviewing Mr Greentree constituted the only way to further enquire into Mr Harris' responsibility (or lack thereof) for the clearing. Unreasonable failure to investigate is not triggered by the failure (if this is the correct word) to interview Mr Greentree.
For the reasons above, I do not consider the Harris defendants have established that the investigation into the alleged offences was conducted in an unreasonable or improper manner (subs (1)(a)) by reason of the failure to interview Mr Greentree. Nor do I consider that there was an unreasonable failure to investigate the alleged clearing events in relation to the charges (subs (1)(c)) on this basis.

Were the proceedings initiated without reasonable cause and/or conducted by the prosecutor in an improper manner?

The Harris defendants also relied on s 257D(1)(b) of the Criminal Procedure Act which refers to the initiation of proceedings without reasonable cause. The fact that proceedings are unsuccessful does not mean they were initiated without reasonable cause.
Despite the lack of a bright line test as to whether proceedings were initiated without reasonable cause, it is generally accepted that the question turns on whether, on the facts apparent to the prosecutor at the time of instituting the proceedings, there was no substantial prospect of success: Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257 at 264. This is the essential question here.
The Harris defendants' position appears to be that, in the absence of evidence impeaching Mr Harris' statement during his interview with the DPIE that he was not responsible for the clearing, the prosecutor did not have reasonable grounds for initiating the proceedings. Again, this submission is rooted in the failure to interview Mr Greentree. In my view, neither the prosecutor nor this Court is bound to accept the evidence of Mr Harris merely because of the absence of evidence to the contrary.
It is important to keep in mind that the factual premise from which s 44 of the Native Vegetation Act and 13.29 of the Biodiversity Conservation Act proceeds, is that the accused is a landholder of land on which native vegetation is cleared. If established, the accused is taken to have cleared the vegetation unless it is proved that the activity was carried out by another person and that authorisation for the carrying out of the offence was not provided by the landholder. Plainly, the provisions require that the prosecutor establish beyond reasonable doubt first, that vegetation which can properly be characterised as native vegetation has been cleared; and second, that the accused is the landholder of land on which this occurred. It then bears upon the accused to establish, on the balance of probabilities, a defence.
Bearing this in mind, I consider that the Harris defendants' submission would have the effect of requiring the prosecutor to have evidence capable of proving the essential elements but also of disproving any defences (under the deeming provisions) that may be raised by the defendants ahead of initiating the proceedings. I do not consider that a prosecutor's failure to have evidence capable of refuting an evidential burden for evidence "to the contrary" borne by the defendants to mean that it was apparent to the prosecutor, at the time of instituting the proceedings, that there were no substantial prospects of success.
Rather, I find that it was reasonable for the prosecutor to commence the proceedings, having gathered sufficient evidence to prove the elements of the offences as charged. The fact that Mr Harris denied in his record of interview any responsibility for the alleged clearing, is not sufficient in and of itself to negate any prospects of success. Furthermore, whilst the the Harris defendants give significant weight to the statements by Nicholas Greentree and Mr Gersbach that they had not observed Mr Harris at Boolcarrol, or been in contact with him, I do not consider this to be determinative of whether Mr Harris had carried out, or authorised the clearing the subject of the charges, especially in circumstances where he operated in a partnership with Mr Greentree.
I accept that if evidence clearly exculpating the Harris defendants had arisen during the course of the DPIE's investigation, the reasonableness of the prosecutor's decision to initiate proceedings may have been impeded, but I do not consider that such evidence existed in the circumstances. As noted elsewhere in this judgment, it is also not appropriate to rely on Mr Greentree's evidence in hindsight, to argue that the proceedings had no reasonable prospects of success. Simply stated, I do not consider that the failure to interview Mr Greentree had much bearing on the prospects of success of the prosecutor's case.
Overall, the prosecutor obviously considered that it had sufficient evidence to discharge its onus of proof. Having reviewed the evidence before the prosecutor at the time, I accept that there were reasonable grounds for initiating the proceedings against the Harris defendants. I therefore do not consider s 257D(1)(b) of the Criminal Procedure Act to be satisfied.
Finally, and relatedly, I do not accept the proposition that the proceedings were conducted by the prosecutor in an improper manner. The Harris defendants submit that impropriety is inherent in the prosecutor's decision to initiate and maintain proceedings despite the lack of intelligible evidence substantiating its case against them. Implicit in this submission is the proposition that the prosecutor improperly sought to gain an unfair forensic advantage by having both sets of proceedings heard together in the hope that something might turn up in the hearing of the matters that would assist its case against any of the defendants. I do not find on the evidence that any ulterior motive can be inferred on the part of the prosecutor and I reiterate my above findings that I consider there to have been sufficient grounds for commencing proceedings against the Harris defendants. Impropriety therefore does not arise in this context.

Are there any other exceptional circumstances relating to the conduct of the proceedings by the prosecutor which make it just and reasonable to award costs?

With respect to the Harris defendants' submission that the conduct of the DPIE's investigation and of the proceedings, including the prosecutor's joint trial application, constitutes exceptional circumstances warranting an order for costs, I do not consider that the prerequisite in s 257D(1)(d) of the Criminal Procedure Act is satisfied or, even if it was, that it would be just and reasonable to award professional costs in the circumstances.
The application of s 257D(1)(d) contains several hurdles. It only arises for consideration if there are "other exceptional circumstances" that have not already been considered in relation to earlier subsections: Fosse at [30]; Environment Protection Authority v Bulga Coal Management Pty Ltd (No 2) [2014] NSWLEC 70; (2014) 202 LGERA 203 ('Bulga Coal Management (No 2)') at [76]. It is also clear that what must be considered is the actual conduct of the proceedings by the prosecutor. Plainly, this could not be satisfied if the circumstances establish one of the other three limbs of the subsection or if the circumstances raised related to conduct which occurred before the proceedings were initiated.
Furthermore, the circumstances relied upon must be "exceptional" such that it would be "just and reasonable" to award costs. While not defined in the Criminal Procedure Act, the term 'exceptional' has been considered to require some unusual or extraordinary circumstances: Port Macquarie-Hastings Council v Lawlor Services Pty Ltd (No 7) (2008) 159 LGERA 87; [2008] NSWLEC 75 at [75]; Bulga Coal Management (No 2) at [76]. The type of exceptional circumstances that may lead to an order for costs being "just and reasonable" in this context involve those that result in an unfair hearing or in unreasonable orders having been made: Caltex Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 36 NSWLR 552; (1995) 87 LGERA 188 at 561.
For completeness, although not specifically raised by the Harris defendants under this subsection, I do not consider the fact that the prosecutor sought and obtained an order for a joint trial to have resulted in an "unfair hearing".
I consider that the exceptional circumstances relied upon by the Harris defendants are to a large extent the same circumstances that were previously raised in relation to other subsections. In this regard, and bearing in mind the principles summarised above, I reject the Harris defendants' submission that s 257D(1)(d) of the Criminal Procedure Act operates as a "catchall provision" and I do not consider this subsection to be satisfied by the prosecutor's alleged unsatisfactory conduct as identified in the Harris defendants' submissions in relation to other subsections.
For the same reasons, I reject the Harris defendants' submission in relation to the prosecutor's conduct in seeking (and obtaining) orders that the proceedings against them be heard and determined together with the matters against Mr Greentree and Auen Grain. Although only explicitly raised in relation to s 257D(1)(d), the application for a joint trial, or at least the alleged motive behind it, was addressed in the Harris defendants' submissions in relation to suggested impropriety on the part of the prosecutor. The gist of that submission appears to be that the prosecutor sought to gain an unfair evidentiary advantage by having both sets of proceedings heard together. I do not find on the evidence that there can be inferred any ulterior motive on the part of the prosecutor. To the extent that this matter was raised in relation to another subsection, I also find the application for a joint trial by the prosecutor cannot be characterised as a matter falling within the scope of subs (1)(d).
If I am wrong in that respect, and insofar as the Harris defendants' criticise the prosecutor's conduct in seeking a joint trial in circumstances where they had indicated at the hearing of the notice of motion for orders pursuant to s 29(2) of the Criminal Procedure Act that they would not deploy a cut-throat defence, I accept the prosecutor's submission that it was reasonable for that application to have been brought given the similitude of the charges and the commonality of witnesses who would otherwise have had to be called twice to give evidence. I also consider the very fact that the joint trial application was successful to be indicative of its reasonableness.
It is clear (as considered by Pain J) that joint trials are designed to promote and facilitate the fair and efficient disposal of criminal proceedings and are to be determined having regard to the interests of justice. It is also clear that the interests of justice extend beyond the circumstances of the defendants. Pain J accepted that a joint trial to be a fair and reasonable manner to conduct these proceedings in light of the fact that there were multiple offences arising from the same set of circumstances and that the offences formed part of a series of offences with the same character: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris [2019] NSWLEC 187 at [15]. Therefore, whilst I accept that the prosecutor's conduct in seeking to have the matters heard jointly resulted in the proceedings being lengthier and costlier for the Harris defendants, I find that it has not led to an unfair hearing and that it cannot be said to amount to an exceptional circumstance for the purpose of s 257D(1)(d) of the Criminal Procedure Act.
If, on the other hand the Harris defendants' claim is directed at the outcome of the joint trial application, I note that s 257D(1)(d) is addressed to the conduct on the part of the prosecutor, rather than that of the Court. Interestingly, and while not determinative of the application of the subsection, the outcome of the joint trial application was not the subject of an appeal by the Harris defendants.
The provision would therefore not apply to such a claim either.

Conclusion

In light of the above findings, I decline to make an order for costs under s 257D(1) of the Criminal Procedure Act against the prosecutor and in favour of the Harris defendants.

Costs

Costs of the hearing on costs have not been discussed with the parties. Before making any orders, if needed, I will provide the parties with an opportunity to make submissions on costs. My present view is that there should be no order for costs.

Orders

The orders of the Court are: 1. The application for costs made by Kenneth Bruce Harris and Merrywinebone Pty Ltd is dismissed.

Addendum 20 December 2023

I gave judgment and made orders in these proceedings on 8 December 2023 and made no order for costs of the costs application. As the parties have now reached agreement in relation to costs, I make the following further order.

Further Orders

By consent, the orders of the Court are: 1. There be no order for costs of the costs application made pursuant to s 257C of the Criminal Procedure Act 1986 (NSW).

Amendments 31 January 2024 - Addendum added at par [72] Further orders made at par [73] 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: 31 January 2024

Native Vegetation Act 2003(NSW)

(2014) 202 LGERA 203

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