Citation: Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16
Court: Court of Criminal Appeal
Date: 15 February 2023
Judges: Beech-Jones CJ at CL, Price J, Garling J
Background
Two individuals, an occupier and a farm manager of a rural property near Walgett, were prosecuted by the Natural Resources Access Regulator for offences under the Water Management Act 2000 (NSW). The charges alleged that they took water from a water source while the metering equipment on the relevant pumps was not operating properly or not operating at all. The prosecution's case centred on "MACE" ultrasonic flow meters and analogue engine hour meters that inspectors observed to be non-functional during an August 2015 site visit.
After the prosecution closed its case, the farm manager gave evidence by affidavit that, in late July 2015, he had replaced the analogue engine hour meters with new digital engine hour meters. The prosecution conceded it could not exclude the reasonable possibility that functioning digital meters were installed during the charge period. The primary judge dismissed all charges, finding, among other things, that the Water Management Act did not require the use of any specific metering equipment, and that the prosecution had not established the water was taken by means of the pleaded MACE meters.
The two defendants then applied for their costs under ss 257C and 257D of the Criminal Procedure Act 1986 (NSW). The primary judge dismissed the costs application, and the defendants appealed to the Court of Criminal Appeal.
Legal Issues
- Whether the primary judge erred in finding that the prosecution's officers were not aware of the existence of functioning digital engine hour meters on the pumps in August 2015 (Ground 1).
- Whether the primary judge erred in having regard to the defendants' failure to alert the prosecution to the existence of those digital meters prior to the close of the prosecution case (Ground 2).
- Whether the primary judge erred in finding there was no breach of the prosecutorial duty of disclosure, and whether any such breach necessarily meant the proceedings were conducted in an "improper manner" under s 257D(1)(b) of the Criminal Procedure Act (Ground 3).
- Whether the primary judge erred in rejecting a claim of unreasonable delay by focusing only on when proceedings were commenced rather than on the interlocutory conduct of the proceedings (Ground 4).
Decision
Ground 1: Awareness of digital engine hour meters
The Court of Criminal Appeal found no error in the primary judge's conclusion that the prosecution's witnesses were not aware of the presence of functioning digital engine hour meters in August 2015 (at [39]-[49]). The primary judge had reasoned that, if the prosecution officers had known of those meters, it would have been illogical for them to pursue charges based solely on the non-functional MACE meters without addressing the digital meters in their evidence. The appellate court accepted that reasoning, noting the manner in which the prosecution was conducted was consistent only with the officers being unaware of those meters (at [39]). The appellants' failure to mention the digital meters in their responses to statutory notices issued in 2015 and 2018 reinforced that conclusion (at [46]).
Ground 2: Failure to alert the prosecution
The appellate court rejected the argument that the primary judge was wrong to treat the defendants' withholding of the digital meter evidence until after the prosecution case closed as a relevant consideration (at [60]). Drawing on observations in Latoudis v Casey and Southon v Plath, the Court confirmed that the timing of disclosure of exonerating evidence is relevant to the costs discretion, even though a defendant bears no onus of proof and is generally entitled to withhold evidence until the prosecution closes its case (at [55]-[58]). Once the primary judge was not satisfied the prosecution knew of the functioning digital meters, the proper characterisation was that the acquittal arose from evidence the defendants could have disclosed earlier but did not (at [59]).
Ground 3: Prosecutorial duty of disclosure
The Court held that a breach of the prosecutorial duty of disclosure does not automatically amount to conducting proceedings in an "improper manner" for the purposes of s 257D(1)(b) (at [67]-[68]). The degree of any departure from the duty, the reason for the departure, and its significance must all be considered. Here, even if the failure to disclose material from a related 2017 investigation technically engaged the disclosure duty, the primary judge was entitled to find the prosecution was not conducted in an improper manner, given that the non-disclosure was inadvertent and the prosecution was clearly cognisant of its disclosure responsibilities (at [69]). The fact that the same material had been disclosed in related proceedings between the same parties, and concerned matters always known to the defendants, further supported that conclusion (at [69]).
Ground 4: Unreasonable delay
The appellate court found no reversible error in the primary judge's treatment of the delay argument (at [76]-[77]). The primary judge's reliance on proceedings being commenced within the three-year statutory limitation period addressed the claim of unreasonable delay in commencement. While the primary judge dealt only briefly with the appellants' separate complaint about delay arising from interlocutory applications, the appellate court was not satisfied this brief treatment constituted error, particularly given the primary judge's familiarity with the procedural history. In any event, no error had been established in the primary judge's reasons for refusing to exercise the costs discretion, which made any error on this point immaterial (at [76]-[77]).
Orders Made
- The appeal was dismissed.
Key Takeaways
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A breach of the prosecutorial duty of disclosure does not automatically mean that proceedings were conducted in an "improper manner" under s 257D(1)(b) of the Criminal Procedure Act 1986 (NSW). The Court of Criminal Appeal confirmed that the degree of departure, the reason for it, and its significance must all be assessed (at [67]-[68]).
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The timing of a defendant's disclosure of exonerating evidence is a relevant consideration in any subsequent costs application, even though the defendant bears no onus of proof and has no obligation to disclose such evidence before the prosecution closes its case (at [55]-[59]).
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Where a successful defendant withheld material evidence until after the prosecution case closed, and the prosecution was unaware of that evidence, those circumstances can weigh strongly against an award of costs (at [59]-[60]).
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No error is established merely by showing that a primary judge made a positive factual finding against an appellant's contention; the appellant bears the burden of demonstrating that the primary judge was wrong not to find in its favour on the relevant matter (at [38]).
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In dismissing the appeal, the Court noted that the absence of a leave requirement for appeals against a refusal to make a costs order (in contrast to appeals against the making of a costs order) may warrant legislative attention (at [2]).
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Water Management Act 2000 (NSW)
Cases
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3
- Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 102 NSWLR 72; [2020] NSWCCA 48
- Farlie v Ross [2004] NSWSC 1001
- Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
- Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins [2020] NSWLEC 104
- Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins (No 2) [2021] NSWLEC 18
- R v Dainer; Ex parte Milevich (1988) 91 FLR 33
- R v Keane [1994] 2 All ER 478
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
- R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 32
- Southon v Plath (2010) 181 LGERA 352; [2010] NSWCCA 292