AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 6 April 2005

Castlebar Holding v Riley

[2005] NSWCCA 105

Other
CASE STATED

Citation: Castlebar Holding v Riley [2005] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 6 April 2005
Judges: Spigelman CJ, Grove J, Bell J

Background

A company (the appellant) was prosecuted in the Tamworth Local Court for failing to control a noxious weed (St John's Wort) on its land, contrary to the Noxious Weeds Act 1993. The information was laid by a noxious weed inspector employed by Merriwa Shire Council, who gave unchallenged evidence that he brought the proceedings on behalf of the Council. The Local Court found the offence proved, dismissed it without conviction under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, and ordered the appellant to pay the informant's costs of $21,742.05.

The appellant successfully appealed to the District Court, where Berman DCJ quashed both the s 10(1)(a) order and the costs order. The appellant then applied for its own costs of the appeal. Berman DCJ refused that application, and the District Court judge subsequently stated a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912.

The central dispute concerned whether s 70 of the Crimes (Local Courts Appeal and Review) Act 2001 barred the costs order the appellant sought, and whether the council inspector was acting in a "private capacity" so as to take the matter outside s 70's restrictions.

  • Whether s 70 of the Crimes (Local Courts Appeal and Review) Act 2001, which restricts costs in favour of "an appellant whose conviction is set aside," applies where the appeal was against sentence only (including a s 10(1)(a) dismissal and a costs order), with no formal conviction recorded.
  • Whether the council inspector who laid the information was acting in a "private capacity" under s 70(2), which would exempt the proceedings from s 70's costs restrictions entirely.
  • Whether the District Court's refusal to award costs was otherwise open on the facts, including whether any of the exceptional grounds in s 70(1)(a)–(d) were satisfied.
  • Whether several of the questions of law as formulated in the case stated were appropriate for the Court of Criminal Appeal to answer.

Decision

"Conviction" under s 70 extends to set-aside sentences. Grove J (with whom Spigelman CJ and Bell J agreed) held that the word "conviction" in s 70 is ambiguous in isolation ("verbum aequivocum"), but must be read in the context of the Act's extended definition of "sentence." Because a s 10(1)(a) dismissal and a costs order each fall within the statutory definition of "sentence," setting them aside on appeal amounted to setting aside a conviction for s 70 purposes. The costs restriction in s 70 therefore applied.

The inspector was not acting in a private capacity. The Court found that the inspector was an employee of the Council who brought the proceedings on the Council's behalf. Under s 68(4)(b) of the Local Government Act 1993, council employees exercising functions of the council act as agents of the council, not as private individuals. The "private capacity" exception in s 70(2) did not apply, and no analogy with the charitable officer provision in s 70(3) assisted the appellant.

The refusal of costs was open on the merits. Berman DCJ found that the proceedings were reasonably instituted, given that the appellant had done nothing to control the weed over a lengthy period. The Court noted that germane factual controversies at trial, including disputes about whether the appellant's pasture improvement programme had any effect on the weed and whether drought conditions affected its amenability to control, were omitted from the case stated but were plainly relevant to the reasonableness of commencing the prosecution. None of the exceptional grounds in s 70(1)(a)–(d) were established.

Most questions in the case stated were declined. The Court answered only question (b) in the negative, and declined to answer the remaining questions on the basis that they were inappropriately formulated. Grove J reiterated that the case stated procedure is not a vehicle for challenging the ultimate determination of the District Court, and that improperly framed questions will not be answered.

Orders Made

  • Question (b) in the case stated answered in the negative.
  • The appellant ordered to pay the respondent's costs of the case stated.

Key Takeaways

  • Under the Crimes (Local Courts Appeal and Review) Act 2001, the costs restriction in s 70 applies not only where a formal conviction is set aside on appeal, but also where the appeal succeeds against a "sentence" within the Act's extended definition, including a s 10(1)(a) dismissal without conviction and an accompanying costs order.
  • A council employee who lays an information and conducts a prosecution on behalf of the council is not acting in a "private capacity" for the purposes of s 70(2); the private capacity exception is directed at genuinely personal prosecutions, not institutional ones conducted through an employee.
  • The Local Government Act 1993 s 68(4)(b) provided a clear statutory basis for treating the inspector's actions as those of the Council, reinforcing that the s 70 restrictions applied in full.
  • Successful appellants in the District Court face a high threshold before costs will be awarded against a prosecuting authority: the exceptional grounds in s 70(1) require more than the mere fact that the prosecution ultimately failed after contest.
  • The Court of Criminal Appeal reiterated that the case stated procedure under s 5B of the Criminal Appeal Act 1912 is not a substitute for a general right of appeal from the District Court; questions that are disguised challenges to the ultimate decision, or that are poorly formulated, will be declined regardless of how they are framed.

Legislation and Cases Referenced

Legislation:
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), s 70
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)
- Local Government Act 1993 (NSW), s 68(4)(b)
- Noxious Weeds Act 1993 (NSW)
- Constitution (Local Government) Amendment Act 1986 (NSW)
- Solicitors Act 1932 (Imp)

Cases:
- Ward v Williams (1955) 92 CLR 446
- Maxwell v The Queen (1995) 184 CLR 501
- Latoudis v Casey (1990) 97 ALR 45
- Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
- R v Holton [2004] NSWCCA 214
- R v Madden (1995) 85 A Crim R 367
- McConnell Dowell Constructions (Australia) Pty Ltd v EPA [2000] NSWCCA 367
- Clyne v Wrigley (1980) 1 NSWLR 599
- Beeston and Stapleford UDC v Smith [1949] 1 KB 656
- King v Tait (1952) 52 SR (NSW) 137
- Burgess v Boetefur (1844) 7 Man & G 481
- Marks v Beyfus (1890) XXV QBD 494
- R v Lazarevic (1966) 85 WN Pt 1 (NSW) 159
- R v Van De Lubbe (1949) 49 SR (NSW) 309