Citation: Chen on behalf of the Department of Regional NSW v Ardler; Chen on behalf of the Department of Regional NSW v Reid; Chen on behalf of the Department of Regional NSW v Thomas [2022] NSWDC 630
Court: District Court of NSW
Date: 14 December 2022
Judge: Haesler SC DCJ
Background
Three Aboriginal men from a South Coast NSW community were observed diving at Shell Point, Kiola in August 2018. Fisheries officers suspected they had taken more abalone than permitted under either the recreational bag limit (two per person per day) or the interim Aboriginal cultural fishing access arrangement (ten per person per day). Each man was stopped, searched, and told he might face prosecution.
The men, who were participants in a South Coast land claim before the Federal Court, stated they had gathered the abalone "for a feed" and mentioned a funeral. Fisheries officers allowed each man to retain ten abalone, seized the remainder, and confiscated some diving equipment. Despite the incident occurring in August 2018, prosecution notices were not served until days before the two-year statutory limitation period was due to expire.
Each defendant faced two charges under the Fisheries Management Act 1994: possessing more than the possession limit of black lipped abalone (haliotis rubra) in circumstances of aggravation (the species being a "priority species"), and shucking abalone adjacent to NSW waters without a commercial fisher licence. The Local Court hearing raised multiple contested issues, but the prosecution ultimately failed at a threshold level. The Magistrate found that the Fisheries officers had not established sufficient expertise to give opinion evidence identifying the seized fish as black lipped abalone beyond reasonable doubt, and verdicts of not guilty were entered on all charges. The Magistrate then awarded each defendant costs of $56,900, plus $3,300 for a proposed defence expert. The prosecution appealed those costs orders.
Legal Issues
- Whether the Local Court Magistrate erred in awarding costs to the successful defendants under the Criminal Procedure Act 1986
- Whether the Fisheries officers were qualified to give expert opinion evidence identifying the seized fish as black lipped abalone (haliotis rubra) under sections 78 or 79 of the Evidence Act 1995
- Whether the prosecution had unreasonably failed to investigate a matter of which it was aware that suggested the accused persons might not be guilty, so as to satisfy the threshold for a costs order against a prosecuting authority
- Whether costs of the appeal itself were to be awarded
Decision
The District Court upheld the prosecution's appeal against the costs orders, setting aside the Local Court's orders. The central question on the costs appeal was whether the prosecution had "unreasonably failed to investigate" a matter suggesting the accused might not be guilty, within the meaning of the relevant provision of the Criminal Procedure Act 1986. The Court found that the prosecution had not been put on notice, prior to the hearing, that the identification of the species of abalone was a live issue. The pre-hearing correspondence from the defence focused on native title, the Racial Discrimination Act, and cultural fishing obligations, but made no mention of any challenge to the species of the seized fish.
On the expert evidence question, Haesler SC DCJ expressed his own view, albeit obiter (that is, not strictly necessary to the decision), that he would not have upheld the Magistrate's finding on this point had it been the basis of the appeal. The photographs of the seized abalone, which clearly showed distinctive black lips, made it "not reasonably open to question" that the fish were black lipped abalone. The judge observed that, in his view, species identification of this kind may well have been amenable to lay opinion evidence under section 78 of the Evidence Act, or even to judicial notice under section 144, given the distinctive visual characteristics involved. The judge drew an analogy with cases where experienced police officers have been permitted to give opinion evidence about illicit drug identification based on their training and field experience.
Despite those observations, the Court resolved the appeal on the costs question rather than on the admissibility of the expert evidence. Because the defence had not forewarned the prosecution that species identification would be contested, the prosecution could not be said to have unreasonably failed to investigate that issue. The threshold for a costs award against a prosecuting authority was therefore not met.
No order as to costs of the appeal itself was made.
Orders Made
- In each matter, the appeal is upheld
- The orders of the Local Court are set aside
- No order as to costs
Key Takeaways
- A prosecution authority does not "unreasonably fail to investigate" a matter suggesting innocence if the defence has not given prior notice that the particular issue will be contested; the costs threshold under the Criminal Procedure Act 1986 requires that the prosecutor was actually aware of the relevant matter before the hearing.
- Under sections 78 and 79 of the Evidence Act 1995, a witness's entitlement to give opinion evidence on a technical matter depends on demonstrated specialised knowledge from training or experience, not on whether more sophisticated testing methods were theoretically available.
- Fisheries officers may, in appropriate circumstances, be capable of giving admissible identification evidence about fish species in a manner analogous to experienced police officers giving opinion evidence on drug identification, provided their expertise is adequately established before the court.
- Section 144 of the Evidence Act 1995 (judicial notice of common knowledge) was not raised in the Local Court proceedings; the District Court noted this provision may have had "work to do" on the species identification question, had it been argued.
- Correspondence between defence solicitors and prosecutors before a hearing can be relevant to whether a subsequent costs application succeeds; the absence of notice about a specific evidentiary challenge weighed against the defendants on the costs question in this case.
Legislation and Cases Referenced
Legislation:
- Fisheries Management Act 1994 (NSW), ss 3, 4, 18, 18A, 287
- Fisheries Management (General) Regulation 2010 (NSW), cl 94(1)
- Criminal Procedure Act 1986 (NSW), ss 214
- Evidence Act 1995 (NSW), ss 78, 79, 138, 144
- Native Title Act 1993 (Cth), s 212
- Racial Discrimination Act 1975 (Cth), s 9
- Crimes (Appeal & Review) Act 2001 (NSW)
Key Cases:
- HG v The Queen (1999) 197 CLR 414
- Honeysett v The Queen (2014) 253 CLR 122
- Makita v Sprowles [2001] NSWCA 305
- Czako v R [2015] NSWCCA 202
- Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373
- O'Brien v Hutchinson [2012] NSWSC 429
- Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292
- Andrews v Ardler & Brown [2013] NSWDC 94
- Latoudis v Casey (1990) 170 CLR 534
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298