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Court of Criminal Appeal 10 December 2010

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

[2010] NSWCCA 292

Other
COSTS COSTS OF ACCUSED IN CRIMINAL PROCEEDING CRIMINAL PROCEDURE ACT 1986, S 257C COSTS COSTS OF ACCUSED IN CRIMINAL PROCEEDING APPEAL

Citation: Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292
Court: Court of Criminal Appeal, New South Wales
Date: 10 December 2010
Judge(s): Beazley JA; Kirby J; Johnson J

Background

Three adjoining landowners near Murwillumbah in northern New South Wales were each charged under the National Parks and Wildlife Act 1974 with harming plants forming part of an endangered ecological community, specifically the Swamp Sclerophyll Forest on Coastal Floodplains. The prosecution alleged that trees the appellants had cut down on their respective properties formed part of that community. Establishing that fact was an essential element of each offence.

The prosecution called two witnesses: an officer from the National Parks and Wildlife Service and a botanist. It did not call a soil scientist, despite the definition of the relevant ecological community in the Scientific Committee's Final Determination making specific reference to soil type, landform, and hydrology.

After the prosecution closed its case, the appellants tendered a report from Dr Pamela Hazelton, a soil scientist. Dr Hazelton concluded that the soil on the land was not alluvial or humic, and that the landform was not a floodplain. Following an adjournment, the prosecutor withdrew the charges. The appellants then applied for costs under s 257C of the Criminal Procedure Act 1986. The trial judge (Pain J in the Land and Environment Court) refused that application, and the appellants appealed to the Court of Criminal Appeal.

  • Whether costs may be awarded to accused persons following withdrawal of a prosecution under s 257C of the Criminal Procedure Act 1986
  • Whether the prosecutor unreasonably failed to investigate (or properly investigate) a relevant matter under s 257D(1)(c), specifically the soil characteristics required to establish membership of the Swamp Sclerophyll EEC
  • Whether the trial judge erred in the exercise of her discretion in refusing to make a costs order
  • Whether the appellants' failure to serve Dr Hazelton's report on the prosecution before the prosecution closed its case was relevant to the costs application

Decision

The Court of Criminal Appeal dismissed the appeal, upholding Pain J's refusal to award costs. Section 257D(1) of the Criminal Procedure Act 1986 operates as a gatekeeping provision: costs cannot be awarded against a prosecutor acting in a public capacity unless the court is satisfied that at least one of the specified circumstances is established. The appellants relied on s 257D(1)(c), arguing the prosecutor had unreasonably failed to investigate the soil characteristics of the land, a matter that went directly to guilt.

The Court applied the House v R standard for appellate review of discretionary decisions, under which an appellate court may only intervene if the primary judge made an error of principle, took into account irrelevant considerations, ignored relevant ones, or reached a conclusion so unreasonable as to be plainly wrong. The Court found no such error in Pain J's reasoning or conclusions.

Significantly, the Court observed that the appellants had made a deliberate forensic choice not to serve Dr Hazelton's report on the prosecution before or during the prosecution's case. This tactical decision gave them the element of surprise, but it also meant the prosecutor never had an opportunity to respond to the soil science evidence. The Court indicated that where an accused withholds an expert report until after the prosecution closes its case, that conduct would weigh strongly against the accused in any subsequent costs application, even if the threshold under s 257D(1) were met and the court were exercising its residual discretion.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • Section 257D(1) of the Criminal Procedure Act 1986 operates as a restrictive gateway: a court cannot award costs against a public prosecutor following withdrawal of charges unless it is affirmatively satisfied that at least one of the prescribed circumstances exists, including unreasonable failure to investigate a relevant matter under s 257D(1)(c).

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the House v R principles govern appellate review of a trial judge's refusal to award costs in these circumstances; the appellate court will not substitute its own view unless a specific error of discretionary principle is identified.

  • Where an accused person deliberately withholds an expert report from the prosecution until after the prosecution has closed its case, that forensic choice operates strongly against the accused in any subsequent application for costs, even if the threshold conditions under s 257D(1) are otherwise established.

  • Under s 257D(1)(c), the question of whether a prosecutor unreasonably failed to investigate a relevant matter must be assessed on what the prosecutor knew or ought reasonably to have known, not simply on the basis that the prosecution ultimately failed after expert evidence the prosecutor had never seen was tendered.

  • Withdrawal of charges does not automatically entitle an accused to a costs order; the statutory scheme requires active satisfaction of one or more specific preconditions before costs can be considered.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 257C, 257D
- Criminal Appeal Act 1912 (NSW), s 5AB
- National Parks and Wildlife Act 1974 (NSW), s 118A(2)
- Threatened Species Conservation Act 1995 (NSW), s 4, Sch 1, Pt 3

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