Citation: Andrews v Ardler & Brown [2013] NSWDC 94
Court: District Court of NSW
Date: 21 June 2013
Judge(s): Murrell SC DCJ
Background
The respondents, two Aboriginal people from Wreck Bay on the NSW South Coast, were found by fisheries officers in July 2008 in possession of 110 abalone, including 51 undersized fish, caught from a closed area. The catch limit was two fish per person. The respondents told officers they had gathered the fish for a NAIDOC week celebration. They were charged in June 2010 under the Fisheries Management Act 1994 with three offences relating to possession of fish from closed waters, undersized fish, and excessive quantity.
From the outset, the respondents indicated they might rely on native title rights under the Native Title Act 1993 (Cth) to defeat the charges. All elements of the FMA offences were admitted by notice; the only live issue was whether s 211 of the Native Title Act operated to suspend the FMA's application to their fishing activities. The hearing was fixed for December 2011, but on the hearing date the appellant (the prosecutor) withdrew the charges. The Local Court then ordered the appellant to pay the respondents' costs of $200,000.
The appellant appealed the costs order to the District Court. The respondents cross-contended that costs should have been awarded on additional or different bases, and that the quantum should have been higher.
Legal Issues
- Whether the Local Court erred in declining to award costs under s 214(1)(a) of the Criminal Procedure Act 1986 (prosecution conducted in an unreasonable or improper manner)
- Whether the Local Court erred in awarding costs under s 214(1)(c) (prosecution not properly investigated before being commenced or withdrawn)
- Whether the Local Court erred in awarding costs under s 214(1)(d) (other exceptional circumstances)
- Whether the appellant bore the onus of proving that the Native Title Act did not operate to suspend the FMA
- Whether the quantum of $200,000 was just and reasonable
Decision
Issue 1: Section 214(1)(a) (unreasonable or improper investigation)
The District Court found no error in the Local Court's conclusion that the investigation was not conducted in an unreasonable or improper manner. The respondents' contention that the appellant had conducted itself improperly was not established on the evidence.
Issue 2: Section 214(1)(c) (failure to investigate before commencement or continuation)
The District Court considered whether the Local Court had taken into account irrelevant matters. The appellant argued that no evidence had been led and no submissions made about specific avenues of investigation the prosecutor had failed to explore, meaning those avenues could not properly have founded a costs award. The Court examined the Local Court's reasoning on this ground in detail, and identified that the Local Court had failed to articulate what investigations ought to have been made. This was a matter the District Court had to weigh in determining whether the costs order could be sustained under this provision.
Issue 3: Section 214(1)(d) (exceptional circumstances)
The District Court held that the Local Court erred in finding "exceptional circumstances" under s 214(1)(d). Examining the matters the Local Court had relied upon, the District Court found that, taken individually and as a whole, they were insufficient. A prosecutor is entitled to commence proceedings at any point within the limitation period. The fact that proceedings were characterised as a "test case" was not inherently exceptional, particularly where the respondents themselves sought to make it one. The "eleventh hour" withdrawal was explained by the "eleventh hour" service of a critical expert report, and could not itself constitute an exceptional circumstance.
Issue 4: Onus of proof on native title
The respondents contended that the Local Court should have first determined that the appellant bore the onus of proving the Native Title Act did not apply. The District Court addressed this as an alternative ground for supporting the costs order, but the reasoning ultimately did not alter the outcome on the costs grounds.
Issue 5: Quantum
The parties agreed the Local Court made a mathematical error of $12,600 in the respondents' favour. Beyond that agreed error, the District Court found no error of law or fact in how the Local Court approached the assessment of just and reasonable costs. There is no rule requiring a court to award any particular percentage of costs claimed.
Orders Made
No orders were made in this decision.
The judgment directs the reader to paragraphs [39], [47], [60], [65], [68] and [70] for the substantive conclusions on each issue. The parties agreed that if the District Court allowed the appeal and set aside the costs order, the matter should be relisted for further submissions on the appropriate outcome.
Key Takeaways
- The District Court confirmed that a prosecutor is entitled to commence proceedings at any time within the prescribed limitation period, and that fact alone does not amount to exceptional circumstances justifying a costs order under s 214(1)(d) of the Criminal Procedure Act 1986.
- A late withdrawal of charges does not automatically constitute "exceptional circumstances" where the withdrawal is explained by the late service of critical evidence, such as an expert report, rather than prosecutorial fault.
- Under s 214(1)(c), a costs order based on alleged failure to investigate requires the court to identify the specific avenues of inquiry that ought to have been pursued; a finding that investigation was deficient cannot rest on unarticulated grounds.
- The characterisation of proceedings as a "test case" does not, without more, constitute an exceptional circumstance for costs purposes, particularly where the defendants themselves were interested in litigating the case on that basis.
- No rule requires a court to award a fixed percentage of claimed costs under s 213 of the Criminal Procedure Act; the applicable standard is whether the amount awarded is just and reasonable, and an agreed mathematical error does not of itself invalidate the broader assessment.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001
- Criminal Procedure Act 1986
- Evidence Act 1995
- Fisheries Management Act 1994
- Native Title Act 1993 (Cth)
Cases
- Allesch v Manuz [2000] HCA 40
- Andrews v Ardler [2012] NSWSC 845
- Appeals of Rigby and Ors (District Court, Blanch CJ, unreported 17 December 2007)
- Coal and Allied Operations v AIRC [2000] HCA 47
- Cliffleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
- De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868
- Dershaw v Sutton (1996) 17 WAR 419
- Dong v Hughes [2005] NSWSC 84
- DPP (Cth) v Neamatti [2007] NSWSC 746
- Fosse v DPP [1999] NSWSC 367
- Fox Percy [2003] HCA 22
- Mason v Tritton (1994) 34 NSWLR 572
- Northern Territory v Maurice (1986) 161 CLR 475
- Sampi v State of Western Australia [2005] FCA 777
- The Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58