Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change

Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act 1986 National Parks and Wildlife Act 1974 Threatened Species Conservation Act 1995

Fosse v DPP [1999] NSWSC 367 Gales Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209 CASES CITED : House v R [1936] HCA 40; 55 CLR 499 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 Weal v Bathurst City Council & Anor [2000] NSWCA 88; (2000) 111 LGERA 181

Donald Esmond Southon (First Appellant) PARTIES: Brian George Hockey (Second Appellant) Glen David Vurlow (Third Appellant) Gordon Plath on behalf of the Department of Environment and Climate Change (Respondent)

FILE NUMBER(S): CCA 2009/11503; 2009/11507; 2009/11509

COUNSEL: T Howard (Appellants) G Furness (Respondent)

SOLICITORS: Stacks the Law Firm (Appellants) Environment Protection Authority (Respondent)

LOWER COURT JURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S): 50088/08; 50089/08; 50090/08

LOWER COURT MEDIUM NEUTRAL CITATION: Gordon Plath of the Department of Environment and Climate Change v Vurlow; Gordon Plath of the Department of Environment and Climate Change v Hockey; Gordon Plath of the Department of Environment and Climate Change v Southton [2009] NSWLEC 102

• 1 - THE COURT OF CRIMINAL APPEAL CCA 2009/11503 CCA 2009/11507 CCA 2009/11509

BEAZLEY JA KIRBY J JOHNSON J

10 December 2010 Donald Esmond Southon v Gordon Plath on behalf of the Department of Environment and Climate Change Brian George Hockey v Gordon Plath on behalf of the Department of Environment and Climate Change Glen David Vurlow v Gordon Plath on behalf of the Department of Environment and Climate Change Judgment 1 BEAZLEY JA: The appellants, who are the respective proprietors of three adjoining rural/residential parcels of land situated in Dulguigan near Murwillumbah in northern New South Wales (the land), were each charged with an offence against the National Parks and Wildlife Act 1974, s 118A(2) in that each had harmed plants forming part of an endangered ecological community known as the "Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions" (the Swamp Sclerophyll EEC). The harm alleged to have been caused by each was that he had cut down trees on his land which formed part of the Swamp Sclerophyll EEC. An essential element of the charge was that the vegetation which had been cut down formed part of the Swamp Sclerophyll EEC. 2 The respondent as prosecutor withdrew the charges on 18 June 2009, after a report by the appellants' soil expert, Dr Hazelton, had been tendered in evidence. The trial judge then dismissed the summons whereupon the appellants made an application for costs under the Criminal Procedure Act 1986, s 257C. Her Honour refused that application. 3 This appeal is brought under the Criminal Appeal Act 1912, s 5AB from her Honour's refusal to make the costs orders sought by the appellants following the withdrawal of the prosecution and her Honour's dismissal of the summons.

The statutory scheme 4 The s 118A(2) offence with which each appellant was charged provided: "(2) A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community ." (emphasis added) 5 The term "endangered ecological community" is defined in the National Parks and Wildlife Act, s 5, to mean an endangered or critically endangered ecological community within the meaning of the Threatened Species Conservation Act 1995. 6 Pursuant to the Threatened Species Conservation Act, s 4, the term "endangered ecological community" means an ecological community specified in Sch 1, Pt 3. The Threatened Species Conservation Act, Sch 1, Pt 3, specified the Swamp Sclerophyll EEC as: "Swamp Sclerophyll Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions (as described in the final determination of the Scientific Committee to list the ecological community)" 7 So far as is presently relevant, the Final Determination of the New South Wales Scientific Committee was as follows: "The Scientific Committee, established by the Threatened Species Conservation Act, has made a Final Determination to list Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions, as an ENDANGERED ECOLOGICAL COMMUNITY in Part 3 of Schedule 1 of the Act …

1. Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions is the name given to the ecological community associated with humic clay loams and sandy loams, on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains. Floodplains are level landform patterns on which there may be active erosion and aggradation by channelled and overbank stream flow with an average recurrence interval of 100 years or less … Swamp Sclerophyll Forest on Coastal Floodplains generally occurs below 20 m (though sometimes up to 50 m) elevation, often on small floodplains or where the larger floodplains adjoin lithic substrates or coastal sand plains in the NSW North Coast, Sydney Basin and South East Corner bioregions." 8 The prosecution called two witnesses in its case: Allan Goodwin, an officer with the National Parks and Wildlife Service and Annette McKinley, a botanist. The prosecution did not call evidence from a specialist soil scientist. The relevance of this will be discussed below. 9 The hearing before Pain J commenced in the Land and Environment Court on 15 June 2009. The prosecutor closed its case at lunch time on 16 June 2009. The appellants then adduced evidence by way of the tender of a report from Dr Pamela Hazelton, a soil scientist. Dr Hazelton's evidence, in summary, was that:

(a) The soil on the land on which the trees had been cut down was not alluvial soil, but podsolic;

(c) The landform was not a floodplain and did not have drainage lines associated with a coastal floodplain.

On this evidence, the land on which the trees that had been cut down by the appellants was not Swamp Sclerophyll Forest within the meaning of the definition in the Final Determination. 10 Following the admission of Dr Hazelton's report the trial was adjourned for a day and a half. Upon resumption the respondent announced to the court that it withdrew the prosecution. 11 The appellants' costs application was made under the Criminal Procedure Act, s 257C. That section provides: " 257C When professional costs may be awarded to accused person

(1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs …

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 …" (emphasis added) 12 Before the trial judge, the appellants relied on each of paras (a), (b) and (c) in s 257D(1) as the basis for their entitlement to costs, although with lesser emphasis on para (b). The trial judge rejected the application. On the appeal, the appellants have confined their challenge to the trial judge's determination in respect of para (c).

The argument before the trial judge 13 The appellants' application before the trial judge in respect of para (c) was based principally upon an argument that the prosecution had failed to establish the edaphic or soil component of the description of the Swamp Sclerophyll EEC in the Scientific Committee's Final Determination was an essential component of the description of the Swamp Sclerophyll EEC. 14 In support of its argument, the appellants relied upon the decision of Preston CJ LEC in Gales Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209 in which his Honour held, at [64], that a definitional description such as that which was in issue here: "…has three components that are linked: an edaphic (soil) component ('silts, muds or humic loams' ), a topographical component ('depressions, flats, drainage lines, backswamps, lagoons and lakes') and a locational component ('associated with coastal floodplains'). The soils are 'in' the topographical features identified, which are in turn 'associated' with the coastal floodplain, as defined by the Scientific Committee …" (emphasis added) 15 At [106], Preston CJ LEC stated that the Scientific Committee's description of Swamp Sclerophyll Forest had the same three components. Insofar as the edaphic component was concerned, it comprised "humic clay loams and sandy loams". 16 The evidence of Dr Hazelton was directed to establishing that the edaphic or soil component of the definition had not been satisfied. The respondent's conduct in withdrawing the prosecution was witness to its acceptance that it had failed to prove this essential component. 17 Dr Hazelton's evidence remained relevant on the costs application, as it formed the evidentiary underpinning of the appellants' submission that the prosecutor had unreasonably failed to investigate or to investigate properly a relevant matter of which it was aware or ought reasonably to have been aware for the purposes s 257D(1)(c): that is that soil of the land upon which the trees were cut down was not humic or alluvial and that the topography was not a floodplain or have drainage lines associated with a coastal floodplain.

Evidence adduced at the hearing 18 The principal evidence in the Crown case was that of Ms McKinley. Ms McKinley is a botanist with postgraduate qualifications. In her curriculum vitae, she stated that she is a: "… plant ecologist with research, survey and management experience in a broad range of New South Wales environments. She has post-graduate qualifications majoring in plant ecology and experience working in a wide range of coastal environments with a particular interest in rainforest ecology." 19 In her expert report Ms McKinley stated that she provided: "… an assessment of ecological impacts of clearing and burning on two areas of swamp sclerophyll forest at Dulguigan in Tweed Shire in north-eastern NSW …"

and that: "The assessment found that an estimated 1.07 ha of swamp sclerophyll forest had been cleared and partially burned. The assessment also found that the swamp sclerophyll forest that had been affected constituted an endangered ecological community listed under the NSW Threatened Species Conservation Act …" 20 Ms McKinley's methodology involved both air photo interpretation and site inspections. Three site inspections had been undertaken. Ms McKinley described what she did at each site inspection in the following terms: "The vegetation at both sites was carefully inspected on 14 and 25 September and on 5 December 2007. As Site 1A was a large area (approximately 300 x 75m) it was divided into 17 smaller areas for the purpose of this report, based on vegetation association and discrete patches. Each area was then individually inspected and described. A species list was compiled for each area including species of felled trees. An estimate of height of the original vegetation was made on the basis of height of remaining trees and length of felled vegetation.

Site 1B was a small patch of forest (approximately 50m x 40m) and did not warrant dividing into smaller areas. The site was carefully inspected, traversing the central portion and then undertaking a random meander through the edges of the site. An overall species list was compiled for Site 1B including species of felled trees.

The condition of the vegetation at Sites 1A and 1B prior to clearing was estimated, based on the height and diameter of remaining and felled trees and the presence and relative abundances of weed species." 21 In section 3 of the report, Ms McKinley noted two limitations in her methodology. The second limitation, upon which appellants particularly relied in their application for costs, was in relation to the description of the soil type. In this regard, Ms McKinley said: "Soil texture and colour was noted although not closely examined."

The first limitation was in relation to air photo interpretation. 22 Section 4 of the report was headed, "Description of the study area". It stated: "The Dulguigan study area comprised two areas of partly cleared and burned swamp sclerophyll forest …

Site 1A consisted of an area of remnant swamp sclerophyll forest on a small floodplain. The soils were alluvial (grey-brown humic clay loams) based on field observations . Waterlogged soils were present and the area is periodically inundated. The area was waterlogged with areas of standing water at the time of the September and December 2007 site inspections." (emphasis added) 23 The description of Site 1B was: "Site 1B was a small patch of remnant swamp sclerophyll forest on a small floodplain adjacent to Dulguigan Road … Site 1B was approximately 50 m x 50 m in dimensions …"

There was no reference to soil type in respect of Site 1B. 24 Section 5 of the report recorded the vegetation species found on each site and Ms McKinley's observations of the state of the vegetation. Her report concluded that: "It is considered that the removal of a total of 1.07 ha of remnant Swamp Sclerophyll Forest EEC at the two sites and subsequent fragmentation of the remaining vegetation 'is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction'." 25 In section 7 of the report, Ms McKinley referred to the New South Wales Scientific Committee's determination that Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions (Swamp Sclerophyll Forest) had been listed as an endangered ecological community in the NSW Threatened Species Conservation Act, Sch 1, Pt 3. The report then stated: "The Swamp Sclerophyll Forest EEC is described by the NSW Scientific Committee (2004) as 'associated with humic clay loams and sandy loams, on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains '. The 'most widespread and abundant dominant trees include Swamp Mahogany and Paperbark …'. Other trees that 'may be scattered through at low abundance or may be locally common' at some site include Swamp Box …

The floodplain vegetation within the study area at Dulguigan is associated with humic clay loans on waterlogged and periodically inundated alluvial flats and drainage lines associated with the coastal floodplain, as described in the NSW Scientific Committee's determination." (emphasis added) 26 Ms McKinley gave oral evidence and was extensively cross-examined on her report. One lengthy portion of the cross-examination appears to have been directed at undermining Ms McKinley's conclusion set out at [24] above. It is not necessary to consider that cross-examination for the purpose of the appeal. 27 Ms McKinley was then cross-examined as to the "soils component" information in Table 1 in her report. Table 1 was entitled "Swamp Sclerophyll Forest EEC characteristics and whether or not swamp sclerophyll forest at Sites 1A and 1B meet criteria". The table set out, by way of heading, the criteria from the Final Determination, with a final column heading, "Fits criteria". Under a criteria heading, "Soils" in respect of the "Site/Area", the edaphic or soils component of the Scientific Committee's definition of Swamp Sclerophyll Forest EEC (see bolded portion in [25] above), was reproduced as follows: "Associated with humic clay loams and sandy loams, on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains." 28 The descriptions of "soil" in the study area locations, described as "Swamp sclerophyll forest at site 1A" and "Site 1B" respectively, were each as follows: "Yes, soils are humic clay loams. Waterlogged soils are present and the area is periodically inundated. Area is on a drainage line associated with a coastal floodplain (Section 4)." 29 In her cross-examination, Ms McKinley agreed there were three components to the "Soils" criteria referred to in the table: "an edaphic component", a "topographic component" and a "locational component". She also agreed that the edaphic component was encompassed by the words in the table, "humic clay loams and sandy loams", the phrase "waterlogged or periodically inundated alluvial flats and drainage lines" was a reference to the topological component and the phrase "coastal flood plains" was a reference to the locational component. Ms McKinley agreed that the three components were linked. She also agreed that when she prepared her report, she "had not closely examined the soils". Ms McKinley did not agree, however, that her failure to closely examine the soils was a significant limitation. She explained: "I thought that because I'm not a soil expert I could look at the soils and because I'm familiar with the area I am familiar with alluvial soils but I'm not a soil expert and so that's why I put that that was a limitation. I picked up the soil and crumbled the soil and looked at it and I knew that it wasn't sand and I knew that it was alluvial soils." 30 The limitation referred to in this answer was the limitation stated in section 3 of her report (see [21] above). The cross-examination continued: "Q. When you say you know can I suggest to you that you assumed? A. I assumed, yes, you're correct. I assumed it was alluvial soils because it looked like alluvial soils and it made sense that it was alluvial soils and I've also looked at the soils on the areas above it.

Q. But you couldn't be confident that it was alluvial soil in fact, could you, based on what you did and didn't do? A. I am confident that it was alluvial soils but, as I said, I'm not a soil expert. I'm confident in myself but I would have ideally have liked a soil expert to have confirmed that but I also did look at the mapping for the area." 31 Ms McKinley accepted that the definition in the Scientific Committee's determination required that Swamp Sclerophyll Forest was associated with humic clay loams and sandy loams. She said that the soils at sites 1A and 1B had some organic matter in the topsoil. She agreed that humic soils were soils comprising moderate to highly decomposed or partly decomposed organic material, but not only in the topsoil. Ms McKinley was not able to state whether the soil at sites 1A and 1B had humic matter below the topsoil, as she had not dug any soil pits on the site. 32 It was suggested to her that as she was unsure whether the soil was humic, she could not be confident that the sites were the endangered ecological community described by the Scientific Committee. She responded to this as follows: "I am actually confident that it is on alluvial soils but it's true that's only based on my general knowledge of alluvial soils in the area and I understand that it may have been mapped as being on bedrock. It's a green that's the bedrock (sic)…" (emphasis added) 33 The bolded portion of this answer requires some explanation. The cross-examiner was attempting to undermine Ms McKinley's reliance on Troedson et al, New South Wales Coastal Quaternary Geology - Digital Dataset, NSW Department of Primary Industries, Mineral Resources for Comprehensive Coastal Assessment (the Troedson Mapping), which she had referenced in her report and which is referred to more fully below. Counsel had shown the mapping to her and suggested that the subject land was in the area shaded green. Ms McKinley did not identify the mapping as that of Troedson. Rather, she said: "A. I don't actually remember it but if this is Troedson's then I have looked at it.

Q. And you would agree with me, would you not, that the subject land falls in the green area? A. I'd imagine it does but I'd just like to have a quick look.

Q. Certainly by all means, do you need the, all right I'll let you do what you want to do? A. I'm not, look I'm not actually sure, looking at it but I'll take your word for it that it is.

Q. I'm not asking you to accept. I'm quite happy to take your answer that you're not sure? A. Okay." 34 Neither party tendered the document upon which these questions were based. Nor, subject to what I state below, was it otherwise established that on this mapping the area shaded green depicted an area of bedrock or that the subject land was within the green area. 35 The cross-examination continued: "Q. What I'm suggesting to you is that given the answer that you previously provided to the court namely you don't know whether the soil here is humic, you can't be confident that this is the EEC defined by the scientific community, can you? A. I'm confident in myself but I'm not a soil specialist. That's true and I may, I could be mistaken.

"Q. But your confidence is not based upon any analysis in relation to the question of whether the soils are humic that you can bring to bear for the purposes of the court determining this question? A. No they're not.

Q. So you would agree with me in the absence of any such analysis, putting aside any belief that you might have that you couldn't objectively be confident that it is the EEC, that is, that it has the characteristic of humic soils? A. I am, nevertheless, confident that they are humic soils." 36 Ms McKinley agreed that, ideally, one would carry out an examination of the soil profile to determine whether soils were alluvial, but did not agree that a soil profile examination would have to be done. 37 Ms McKinley said that she could not answer the question whether the soils were humic below the topsoil, as she did not dig down deep enough to have a look. However, she said on three separate occasions that she was nevertheless confident that the soils were alluvial soils, although she also said that it would be ideal to have a soil scientist confirm that the soils on the sites were alluvial soils. 38 Ms McKinley's 'confidence' was based on two factors: her own general knowledge of alluvial soils in the area, as well as her reference, for the purposes of preparing her report, to the Troedson Mapping. 39 Ms McKinley was cross-examined as to why she had not used the 'Morand' Mapping for the purposes of her assessment that the soils were alluvial. This was a reference to mapping by David Morand, who had mapped the soil landscapes of the Murwillumbah and Tweed Heads areas in 1996 on behalf of the Department of Land and Water Conservation. On the Morand Mapping, the subject area was 'suggested' to be an erosional landscape. 40 Ms McKinley's evidence as to why she did not look at the Morand Mapping is significant, particularly in light of the following two answers, which otherwise might be viewed as involving a critical concession: "Q. Would you agree that if the soils on the site were podsolic soils, they cannot have been formed by the fluvial processes referred in the Scientific Committee's determination for this EEC? A. That's correct.

Q. You simply don't know whether the soils are podsolic or not, do you? That is the soils on the subject site? A. No. I don't know." 41 Her evidence in relation to the Morand Mapping was: "Q. I note that you didn't refer to that mapping in your references. Is that because you didn't look at it? A. No. I did not look at the Morand mapping.

Q. The department that retained you, didn't brief you with that material? A. I looked at the [Troedson] mapping because it's generally more accurate on the coastline than the Morand mapping. The Morand mapping is very good mapping but it's not as close detail.

Q. Did the department not brief you with the Morand mapping? A. No but I do have - I have the Morand mapping." (emphasis added) 42 Ms McKinley said that she did not see any signs of active erosion or aggradation on the subject sites. She also agreed that the site that had been cleared was not on a floodplain. However, her evidence was that the site was on a drainage line associated with a floodplain, although most of the site was a draining depression which, she said, was associated with the drainage line. 43 As already noted, in addition to the evidence of Ms McKinley, the respondent called expert evidence both by way of affidavit and orally from Mr Goodwin, an officer with the National Parks and Wildlife Service. Mr Goodwin holds an Associate Diploma in Environmental Control and a Bachelor of Applied Science. Mr Goodwin was responsible for mapping the areas which had been cleared. 44 In his affidavit, Mr Goodwin stated that he was personally familiar with Endangered Ecological Communities in the Tweed Area, including swamp sclerophyll forest on coastal floodplains. In cross-examination, Mr Goodwin agreed that it was the domination of certain vegetation, namely, melaleuca quinquenervia, that caused him to conclude that the land upon which clearing had taken place was the relevant Endangered Ecological Community, together with the fact that the land was on the floodplain. Mr Goodwin rejected the suggestion that he had made an assumption that the land was on the floodplain, stating that he knew the area "very well as a floodplain". Mr Goodwin gave no evidence as to soil type. He expressly disclaimed being an expert in respect of the Endangered Ecological Community.

Reasons of the trial judge 45 The trial judge, at [3], observed that: "The report of Dr Hazelton meant that the cleared vegetation the subject of the prosecution was not on soil identified as one of the criteria for EEC." 46 In the succeeding paragraphs of her judgment, her Honour referred to the report of Ms McKinley which had identified the soil where the vegetation was cleared as being alluvial and the evidence of Mr Goodwin that the cleared vegetation was Swamp Sclerophyll Forest EEC. Her Honour also referred to the relevant statutory provisions, the authorities and the respective arguments of the parties. 47 Her Honour, at [30], stated, relevantly for the purposes of s 257D(1)(c), that the test for determining the reasonableness of an investigation was an objective one involving a consideration of what enquiries were made and should have been made by the prosecutor's investigation. 48 The appellants had argued before the trial judge that as Ms McKinley had stated in her report that there were limitations in her methodology as to soil type, the respondent should have investigated the soil type for the Swamp Sclerophyll Forest EEC more diligently and that more investigation should have been done. The trial judge rejected this submission, finding, at [31], that Ms McKinley had addressed all the elements of the offence, including the soil type. 49 Her Honour acknowledged the limitation in the methodology identified by Ms McKinley, but noted that she had undertaken investigations such as physically examining the soil and had referred to relevant mapping, namely, the Troedson Mapping. Her Honour referred to Ms McKinley's oral evidence that she was aware of the Morand Mapping. It is apparent however, from her Honour's reasons, that she accepted Ms McKinley's evidence, or at least accepted as reasonable, Ms McKinley's opinion that the Morand Mapping, upon which the appellants particularly relied, was on too broad a scale to be definitive. Her Honour then concluded that she was not satisfied the respondent had unreasonably failed to investigate any relevant matter of which it was aware to suggest the appellants were not guilty under s 118A(2). 50 A factor in her Honour's reasoning was her acceptance, at [32], of the respondent's submission that the matters outlined in considerable detail in Gales Holdings were "not required to be replicated in every other matter considering the type of EEC the subject of these proceedings" before her. Her Honour stated that the discussion in Gales Holdings "no doubt reflected evidence obtained in relation to a site that had been extensively studied". Her Honour considered, however, that the nature of a Class 1 merit appeal was quite different from a criminal prosecution.

Issue on the appeal 51 The appellants stated that the sole issue on the appeal was whether the trial judge erred in not being satisfied pursuant to s 257D(1)(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 of that, for any other reason, the proceedings should not have been brought." (see s 257D(1)(c)) 52 It is convenient first to deal with the second of their two challenges to her Honour's decision. 53 The appellants do not contend that her Honour identified the wrong legal principle. However, they contended that in accordance with the principles in House v R [1936] HCA 40; 55 CLR 499 at 504-505, her Honour's decision fell outside the bounds of a sound discretionary ruling. In this regard, two particular challenges were made. First, the appellants submitted that her Honour constructively failed to exercise jurisdiction with respect to the costs application, by failing to give genuine, proper and realistic consideration to relevant matters. Secondly, they submitted that her Honour reached a decision in the determination of those applications which was manifestly unreasonable having regard to the evidence. 54 The first of these arguments draws upon the following statement of Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [129] 428: "Reference was made in argument to the 'sufficiency' of the primary judge's reasons. When it is said that a judge did not give 'sufficient' reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision'. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction." (references omitted) 55 The second is a reliance on what might be described as the default position in House v R, where, although no identifiable error is discernable, nonetheless appellate intervention is warranted. As Dixon, Evatt and McTiernan JJ said in that case: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 56 Before dealing with the submissions of the appellants, it is appropriate to refer to her Honour's comment at [32] of her reasons, set out at [50] above. I am not entirely sure what this remark is directed to. If her Honour intended to say that in a criminal prosecution, matters do not have to be proved in the same way that they need to be proved in a Class 1 merit appeal that would be an error. A criminal prosecution involves an allegation that an offence has been committed. Each ingredient or element of the offence must be proved beyond a reasonable doubt. I very much doubt that was her Honour's meaning. If, by the phrase, "matters outlined in … Gales Holdings", her Honour was referring to the analysis by Preston CJ LEC of the components of the Scientific Committee definition, then each of those matters had to be proved by the prosecution on the criminal standard. It may be and more likely was that her Honour was referring to the range of expert evidence that was called in Gales Holdings and the statement should be understood in that context. Whatever her Honour's intended meaning, the approach to the present appeal must be set against the background that this was a criminal prosecution, in which the prosecution bears the burden of proof of each element of the offence on the criminal standard. 57 However, the costs application before her Honour did not require satisfaction on the criminal standard. Rather, her Honour had to be satisfied on the civil standard of the matters referred to in s 257D(1)(c). In this regard, the appellants bore the onus of establishing that they were entitled to a costs order. This required that the appellants establish:

(1) that the prosecutor unreasonably failed to investigate or to investigate properly;

(2) any relevant matter of which it was aware or ought reasonably to have been aware;

(3) which suggested that the accused person might not be guilty or for any other reason the proceedings should not have been brought. 58 The 'relevant matter' for the purposes of this case was that the edaphic and topographical aspects of the land did not satisfy the descriptions in the Final Determination.

The appellants' submissions 59 The appellants contended that a proper investigation of the soils and topography of the land, if carried out by a suitably qualified person, would have disclosed to the respondent that the subject land did not form part of the Swamp Sclerophyll EEC. The appellants contended that the failure to properly identify these components could only be characterised as involving "fundamental deficiencies", as each went directly to an element of the offence charged, which required proof on the criminal standard. The appellants identified these deficiencies as being twofold: first, the omission to have the soil and land form examined and assessed in a manner sufficient to establish whether the Swamp Sclerophyll Forest EEC was present on the subject land; and secondly, the failure to look at the Morand Soil Landscape Mapping published by the New South Wales Department of Land and Water Conservation to determine the soil landscape type as mapped.

Failure to have the soil and the land form properly investigated 60 As to the first matter, that is, the failure to have the soil and the land form properly investigated, the appellants submitted that the respondent did not have a suitably qualified person examine the edaphic or the topographical criteria set down by the Scientific Committee. In this regard, the appellants relied first upon the fact that Ms McKinley was not a soil scientist or a soil specialist. She was a botanist. The appellants also relied upon the fact that to the extent Ms McKinley undertook any examination of the soil, that examination was cursory, being no more than crumbling the topsoil in her hands, notwithstanding that Ms McKinley understood that for soil to be properly identified as humic, it was necessary to go below the top soil. 61 In contrast to the investigation carried out by Ms McKinley, Dr Hazelton had established that the soil was podsolic soil by its distinctive appearance and which she had determined by digging a number of soil pits which went below the topsoil. The appellant submitted that the failure to investigate the soil as it had been investigated by Dr Hazelton was "unreasonable" within the meaning of s 257D(1)(c), first, because a proper investigation of the soil was required in order to prove an element of the offence; and secondly, because the decision of Preston CJ LEC in Gales Holdings had been published prior to the charges being laid so that the prosecutor ought to have known that proof of the edaphic or soil component of the Final Determination was required.

Failure to look at the Morand Mapping 62 As to the second matter, the appellants submitted that the respondent's failure to look at the Morand Soil Landscape Mapping for the purposes of identifying whether the soil was of the requisite character was a serious deficiency. They submitted that had the respondent looked at the Morand Mapping, which indicated, at least at a prima facie level, that the soils were not alluvial, the respondent would have been on notice that testing of the soil was required to determine whether it met the description in the Final Determination. The appellants also submitted that a consideration of the Morand Mapping would have displaced any assumption in Ms McKinley's mind that the soils were alluvial. This submission is a reference to the evidence of Ms McKinley set out at [32] above. 63 The appellants contended that Ms McKinley's reliance upon the Troedson Mapping did not overcome the unreasonableness of her failing to consider the Morand Mapping, because the effect of her evidence was that there was nothing in the Troedson Mapping which suggested that the soil was alluvial. In this regard, the appellants relied upon a concession by Ms McKinley that the subject land was not depicted in the coastal floodplain; that the subject land was not shown on the Troedson Mapping as on quaternary alluvium; and that Ms McKinley understood that the subject land may have been mapped as being on bedrock.

Was the investigation unreasonable? 64 Both aspects of the appellants' contention that the investigation was unreasonable are answered, in large part by a consideration of the evidence about the mapping. 65 Although Ms McKinley conceded the Troedson Mapping did not show the land as being on quaternary alluvium and also made the concession that the land was not on a floodplain, the Final Determination did not require that the ecological community be on a floodplain. Rather, the Final Determination required that the community be "on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains". Ms McKinley's evidence was that the site was on a drainage line associated with a floodplain, although most of the site was a draining depression which, she said, was associated with the drainage line. By contrast, Dr Hazelton's evidence was that the landform did not have drainage lines associated with a coastal floodplain. 66 Neither the Morand Mapping nor the Troedson Mapping was in evidence to enable the trial judge to form an opinion as to whether either mapping established whether the topographical features in the definition were satisfied, or at least put the respondent on notice that more intensive or extensive investigations than those carried out by Ms McKinley were required. This is of particular importance in determining whether the appellants have discharged their onus of establishing the factors referred to s 257D(1)(c) . 67 Ms McKinley's 'concession' in relation to the Troedson Mapping was heavily qualified. First, she did not identify the mapping she was shown as being the Troedson Mapping. Secondly, she said that the land may have been mapped as being on bedrock. This evidence does not establish that land was on bedrock and accordingly that the soils could not be humic. Given that the 'concession' Ms McKinley made was qualified in the way I have described and as neither mapping was in evidence, much of the strength that otherwise might have been in the appellants' argument is dissipated. 68 In my opinion, there was no error in her Honour not being satisfied that the respondent unreasonably failed to investigate any relevant matter of which it was aware which suggested that the appellants were not guilty of the offence with which each had been charged. The onus of satisfying the court of an entitlement to costs under s 257C is on the defendant to the prosecution: see Fosse v DPP [1999] NSWSC 367. That onus extends to satisfying the Court of the component parts of s 257D upon which a discretionary determination is based. 69 In this case, the appellants were required to establish that the respondent had unreasonably failed to investigate, or to investigate properly, something of which it was aware or ought to have been aware which suggested that the appellants might not be guilty, or that for any other reason the proceedings ought not to have been brought. As the trial judge found, the respondent investigated the soil type. Accordingly, the question for consideration was whether the respondent unreasonably failed to investigate properly the composition of the soils which it knew or ought to have known were not alluvial soils. 70 Ms McKinley professed confidence that the soil type was alluvial, based upon her knowledge of the area, an examination of the surface soil and upon the Troedson Mapping. The appellants did not contend that the Troedson Mapping was not relevant, was wrong, or did not relate to this particular area or did not identify the soil as being alluvial. Nor was there any evidence to suggest that Ms McKinley's reliance on the Troedson Mapping was misplaced. 71 The cross-examination of Ms McKinley as to the mapping was limited to her reasons for not using the Morand Mapping, it being suggested to her that it showed the subject land was erosional, in which case the soil would not be alluvial. However, Ms McKinley provided an acceptable reason for not using the Morand Mapping. In addition, both Ms McKinley and Mr Goodwin relied significantly on the predomination of Sclerophyll flora, as well as their local knowledge of soils in the area, supported in Ms McKinley's case by an examination of the topsoil, which appeared to her, on her physical examination, to be humic. 72 The respondent's investigations can be criticised. However, before an entitlement to the exercise of the Court's discretion is enlivened, the appellants have to satisfy the Court that there was an unreasonable failure by the respondent to investigate properly something of which it ought reasonably to have been aware. At trial, the appellants did not challenge Ms McKinley's expertise to give evidence as to the component aspects of the description of the Sclerophyll Swamp EEC in the Final Determination. Rather, the challenge was whether her evidence was sufficient to establish, on the criminal standard, certain elements of the offence. The cross-examination did not establish that the prosecutor was aware or should have been aware that the soils were not humic. As I have said, Ms McKinley stood steadfast in her belief that the soils were humic. Mr Goodwin's evidence supported that evidence. 73 There is no doubt that Dr Hazelton's report undermined Ms McKinley's evidence in respect of the edaphic or soil aspects of the land. However, s 257D(1)(c) does not provide an entitlement to costs merely because one expert trumps another, or where one aspect of the evidence is found to be unmaintainable either because of contrary evidence given by the defence, or because the prosecution evidence has been effectively undermined in cross-examination. 74 In my opinion, this case rose no higher than as I have just indicated, namely, that Dr Hazelton's evidence was sufficient to undermine the respondent's case in respect of soil. Once Dr Hazelton's evidence was tendered, it was reasonable for the respondent to accept it would not be able to prove beyond a reasonable doubt the soil component of the description in the Final Determination. That of itself, however, does not prove that the respondent unreasonably failed to investigate a matter of which it was aware or ought to have been aware. 75 The appellant also relied upon Dr Hazelton's evidence in respect of the topographical component of the Final Determination. I have already referred to the absence of either mapping in the evidence. The relevant expertise of each of Dr Hazelton and Ms McKinley does not resolve the question whether the respondent unreasonably failed to investigate or investigate properly the topographical component of the matter and, in my opinion, there was no such evidence to establish that matter. 76 There was another aspect of her Honour's reasoning to which reference should be made before concluding on this aspect of the appeal. Her Honour accepted, at least in arguendo, that had the appellants served Dr Hazelton's report prior to the commencement of the trial, there might then have been an unreasonable failure to investigate, given the contents of Dr Hazelton's reports. However, the appellants did not proceed down that route. The consequence for present purposes is that meant that there was no evidence sufficient to satisfy her Honour of the elements of s 257D(1)(c).

Failure to properly engage with the evidence 77 The appellants also submitted that it was not sufficient for the trial judge to merely refer to Ms McKinley's evidence. Rather, her Honour was required to give a proper, genuine and realistic consideration to relevant matters in order to properly exercise her jurisdiction: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at 292 per Gummow J; Weal v Bathurst City Council & Anor [2000] NSWCA 88; (2000) 111 LGERA 181 per Giles JA at [80] 201 (Priestley JA agreeing). 78 The appellants contended that her Honour's reasoning at [31] disclosed a failure to give such proper, genuine and realistic consideration to the nature and degree of the deficiencies in the prosecution case. In this regard, they submitted that her Honour's reference to Ms McKinley's investigations, such as "physically examining the soil" without taking into account the manifest deficiencies in that examination, demonstrated a failure to engage properly with the deficiencies in the investigation of the edaphic and topographical components of the land and failure to properly assess the significance of that deficiency having regard to the terms of s 257D(1)(c). The appellants' further submission that her Honour failed to give full and proper consideration to Dr Hazelton's evidence is really the counterpoise of this submission. 79 In my opinion, this ground has not been made out. In her reasons, her Honour recorded the submissions of both the appellants and the respondent in which each drew her Honour's attention to the factual matters relied upon in support of or in defence of the application for costs. In my opinion, the reasons were adequate to demonstrate that her Honour gave proper genuine and realistic consideration to the evidence. It is also to be remembered that her Honour had heard and read the evidence shortly before the costs application was made. There was no need, therefore, to set it out in detail in dealing with the costs application. 80 It follows, in my opinion, that the appeal should be dismissed. 81 KIRBY and JOHNSON JJ: We agree with the reasons of Beazley JA and her Honour's conclusion that the appeal ought be dismissed. We wish to add some further comments. 82 It is apparent that the appellants did not serve upon the prosecutor the report of Dr Hazelton dated 9 June 2009 until after the prosecution had closed its case on 18 June 2009. It appears that the procedural regime applicable to that hearing did not require prior service of the expert report upon the prosecution. 83 It is noteworthy that recent amendments, concerning case management and pretrial orders in serious criminal indictable proceedings, permit the Supreme or District Courts to order, amongst other things, the pretrial service on the prosecution of a report of any expert witness whom the accused person intends to call to give expert evidence at a trial: ss.143(f); 146(2) Criminal Procedure Act 1986. We do not suggest that these provisions applied to these proceedings. Rather, their enactment reflects the fact that the traditional approach, where an accused person could hold back such evidence until the defence case was underway, no longer reflects the law in this State with respect to trials for the most serious crimes. 84 During the hearing of these appeals, counsel for the appellants acknowledged the forensic advantages of this approach to his clients (page 16.10, 5 July 2010): "KIRBY J: You didn't serve your report. Presumably you wanted the advantage of surprise and there were forensic advantages.

KIRBY J: Had you served the report the prosecution may have been discontinued. Alternatively, they may have got their own soil expert and they may have got someone who had a different view from your expert and they were the risks. Is it not relevant to take that in to account?

HOWARD: Not when one is looking at an error in respect of 257 D. The court is constrained from awarding costs in favour of the defendant unless the court is satisfied of that circumstance or one of the others. The question of service of the report does not bear on the issue of whether the investigation was done properly. However, if one gets past the point, for the purpose of argument let's assume that the prosecutor didn't investigate properly, the question that your Honour is asking me goes to a question of residual discretion. If the circumstances are satisfied is there a broad discretion to be exercised? That's an interesting question that hasn't been answered on my research.

I accept there would be residual discretion to be exercised. There might be disentitling conduct, where you have an entitlement to award costs only if you get through a narrow gate. There would be, if one does gets through that gate, the legislature, one would evince an intention on the part of the legislature that you would get an award of costs absent some disentitling conduct. Is the failure to serve the report disentitling conduct? In my submission it isn't. It wouldn't be entitling to do what it is entitled to do in terms of forensic decisions." 85 It should be kept in mind that s.257C(1) and (3) Criminal Procedure Act 1986 (set out at [11] above) provide for a discretion to order costs against the prosecutor, with costs not to be awarded unless s.257D(1) circumstances are established. In our view, considerations of the type raised with counsel during the hearing would be pertinent to the exercise of discretion on costs. Where an accused person held back from the prosecution an expert report until after the prosecution had closed its case, this would operate strongly against that accused person in any subsequent application for costs by that accused person. **********

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