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Court of Criminal Appeal 7 February 2007

Cliftleigh Haulage Pty. Ltd. v. Byron Shire Council

[2007] NSWCCA 13

Other
CRIMINAL LAW PRACTICE COSTS PROSECUTION IN LOCAL COURT APPEAL FROM CONVICTION CONVICTION SET ASIDE

Citation: Cliftleigh Haulage Pty. Ltd. v. Byron Shire Council [2007] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 7 February 2007
Judge(s): Hodgson JA, Howie J, Price J

Background

A haulage company was prosecuted by a local council in the Mullumbimby Local Court for an environmental offence under the Protection of the Environment Operations Act 1997. The charge alleged that car crushing activity at a worksite caused pollutants to discharge into the ground, amounting to water pollution. The relevant period was ultimately particularised as 30 July to 5 August 2004.

The company's principal and employees gave evidence that no one with authority to act for the company was present at the site during the relevant period. The company was convicted in the Local Court, but that conviction was overturned on appeal to the Land and Environment Court, with the appeal judge (Talbot J) finding the council had not proved beyond reasonable doubt that any authorised person was present at the site during the relevant dates.

The dispute then turned to costs. The company sought a costs order against the council under s 70 of the Crimes (Local Courts Appeal and Review) Act 2001, arguing the council's investigation had been conducted unreasonably, including by failing to take a statement from or call Mr Harrop, the occupier and part-owner of the site. Talbot J declined to make a costs order covering the Local Court proceedings, and a further motion on costs was resolved only partly in the company's favour. The company brought a stated case to the Court of Criminal Appeal on questions of law arising from those costs decisions.

  • Whether Talbot J erred in law by declining to find that the council's investigation was conducted in an unreasonable manner for the purposes of s 70(1)(a) of the Crimes (Local Courts Appeal and Review) Act 2001
  • Whether it was an error of law to reason that a costs order could not be made under s 70(1)(a) because the outcome of calling the absent witness (Mr Harrop) could not be determined
  • Whether Talbot J erred in law in finding there was no unreasonable failure to investigate the appellant's alibi

Decision

The Court of Criminal Appeal answered "yes" to the first two questions and found no error of law on the alibi question, remitting the costs matter to Talbot J for reconsideration.

On the key question concerning Mr Harrop, Hodgson JA held that Talbot J's sole reason for declining to make a costs order was that he could not determine what the outcome would have been had Mr Harrop been called. The Court held that this was an insufficient reason to refuse a finding under s 70(1)(a). Mr Harrop was the occupier and part-owner of the site, had apparently indicated he could give direct evidence of events during the relevant dates, and yet the council took no statement from him and did not call him at trial. The company had even issued a subpoena for him, which he did not answer. In those circumstances, the failure to investigate was capable of amounting to an unreasonable manner of conducting the investigation, regardless of what Mr Harrop might ultimately have said.

The Court confirmed that, to establish unreasonable failure to investigate a potential witness, it is not necessary to prove what that witness would have said. The relevant inquiry is whether the investigation was conducted unreasonably, not whether a different investigation would have produced a different result.

On the alibi issue, the Court found no error of law. A mere assertion by an accused that no authorised person was at the site on a particular date does not, as a matter of law, compel the prosecution to investigate and disprove all possible alibis. The obligation to disprove an alibi beyond reasonable doubt arises only once evidence has been placed before the court capable of raising a reasonable doubt. Any error by Talbot J on this aspect was an error of fact, not law, and was therefore outside the Court of Criminal Appeal's jurisdiction on a stated case.

Orders Made

  • Time limit under s 5BA(2) extended to the date of filing of the stated case
  • Question 1 (whether Talbot J erred in declining to find unreasonable investigation): answered Yes
  • Question 2 (whether the outcome for the absent witness need not be established): answered Yes
  • Question 3 (whether there was error of law on the alibi issue): No error of law
  • Matter remitted to Talbot J for reconsideration
  • The council to pay the appellant's costs of the stated case

Key Takeaways

  • Under s 70(1)(a) of the Crimes (Local Courts Appeal and Review) Act 2001, a costs order against a prosecutor following a successful appeal may be available where the investigation into the alleged offence was conducted in an unreasonable manner.
  • A finding of unreasonable investigation does not require proof of what an absent witness would have said. The Court of Criminal Appeal confirmed that the inquiry focuses on the reasonableness of the investigative conduct itself, not the hypothetical outcome had different steps been taken.
  • Failing to take a statement from or call an occupier of the relevant site, who appeared able to give direct evidence of events at the heart of the charge, was capable of constituting an unreasonable manner of investigation, particularly where the accused had taken steps to compel that person's attendance.
  • No error of law arises merely because a prosecution declines to investigate an accused's alibi in response to bare assertions, without supporting proof. The obligation to disprove an alibi beyond reasonable doubt is triggered only by evidence capable of raising a reasonable doubt, not by unsubstantiated assertions.
  • In dismissing the alibi ground, the Court drew a clear distinction between errors of fact (unreviewable on a stated case) and errors of law (reviewable), underscoring the limited scope of the stated case jurisdiction.

Legislation and Cases Referenced

Legislation:
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), s 70
- Criminal Appeal Act 1912 (NSW), s 5BA
- Protection of the Environment Operations Act 1997 (NSW), s 120

Cases:
- Killick v The Queen (1981) 147 CLR 565
- Latoudis v Casey (1990) 170 CLR 534
- Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692
- Cliftleigh Haulage Pty Ltd v Byron Shire Council [2006] NSWLEC 197