Citation: Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16
Court: Court of Criminal Appeal, New South Wales
Date: 15 February 2023
Judge(s): Beech-Jones CJ at CL, Price J, Garling J
Background
The two appellants were the occupier and farm manager of rural properties near Walgett known as "Mercadool." The Natural Resources Access Regulator (the regulator) prosecuted them for offences under s 91I(2) of the Water Management Act 2000 (NSW), which makes it an offence to take water from a water source by means of a metered work while its metering equipment is not operating properly or at all. The charges related to the operation of three river pumps in August 2015.
The regulator's case rested on evidence that "MACE" meters and analogue engine hour meters attached to the pumps were not working. During the hearing, the appellants tendered a photograph of the meters. Only after the prosecution closed its case did one appellant give evidence that the photograph actually showed digital engine hour meters, which had been installed and were in regular working order.
The primary judge dismissed all charges, finding the prosecution had not established the offending elements beyond reasonable doubt. The presence of functioning digital engine hour meters was fatal to the prosecution case. The appellants then sought costs, but the primary judge refused the application. They appealed to the Court of Criminal Appeal against that refusal.
Legal Issues
- Whether the primary judge erred in finding that the regulator's witnesses were unaware of the existence of functioning digital engine hour meters at the relevant time
- Whether the primary judge erred in treating the appellants' failure to alert the regulator to the digital meters before the close of the prosecution case as a relevant consideration against awarding costs
- Whether any breach by the regulator of its prosecutorial duty of disclosure necessarily meant the proceedings were conducted in an "improper manner" under s 257D(1)(b) of the Criminal Procedure Act 1986 (NSW), triggering a costs order
- Whether the primary judge erred in assessing the unreasonable delay argument solely by reference to the date the proceedings were commenced
Decision
Knowledge issue: The Court of Criminal Appeal upheld the primary judge's finding that the regulator's witnesses were genuinely unaware of the digital engine hour meters. The manner in which the prosecution conducted its case was consistent only with that conclusion. The appellants' own responses to statutory notices issued by the regulator had given no indication that such meters were ever installed or functioning at the pumps.
Failure to alert issue: The Court confirmed that the appellants' decision to withhold mention of the digital meters until after the prosecution closed its case was a legitimate factor for the primary judge to weigh against a costs award. While defendants are not obliged to assist the prosecution, the primary judge was entitled to take into account the absence of any prior disclosure of this information, including the absence of cross-examination of prosecution witnesses on the point.
Prosecutorial disclosure breach issue: The Court held that a breach of the prosecutorial duty of disclosure does not automatically render proceedings "improperly conducted" for costs purposes under s 257D(1)(b). The degree of departure from the duty, the reason for it, and its significance must all be considered. The primary judge was entitled to rely on the prosecutor's subjective belief that disclosure was not required, and no error was established in the conclusion that the conduct did not cross the threshold of impropriety.
Unreasonable delay issue: The primary judge's finding that proceedings were commenced within the statutory three-year limitation period adequately addressed the appellants' argument about delay in commencement. Although the primary judge's brief statement that "no exceptional circumstances arise" was less than ideal, no material error was demonstrated, and no prejudice to the appellants was shown.
Orders Made
- The appeal was dismissed.
Key Takeaways
- A breach of prosecutorial disclosure obligations does not automatically amount to proceedings being conducted in an "improper manner" for the purposes of s 257D(1)(b) of the Criminal Procedure Act 1986 (NSW); the degree, reason, and significance of the departure must be assessed.
- In dismissing the costs appeal, the Court of Criminal Appeal confirmed that a defendant's failure to alert the prosecution to exculpatory evidence before the close of the prosecution case is a relevant consideration when a court exercises its discretion on costs.
- No error was established in the primary judge's finding that prosecution witnesses lacked awareness of the digital meters, where the conduct of the prosecution itself was consistent with that finding and the defendants' statutory responses gave no indication of the meters' existence.
- Under s 257D(1)(b), a prosecutor's subjective belief that disclosure of particular material was not required is a permissible factor in assessing whether the proceedings were conducted improperly.
- Beech-Jones CJ at CL noted that the absence of a leave requirement for appeals against refusals to award costs is a relatively rare legislative feature and suggested this point warrants the legislature's attention.
Legislation and Cases Referenced
Legislation:
- Water Management Act 2000 (NSW), ss 91I(2), 91L(1), 364(2)
- Criminal Procedure Act 1986 (NSW), ss 257C, 257D
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB
Cases:
- Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
- Southon v Plath (2010) 181 LGERA 352; [2010] NSWCCA 292
- Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 102 NSWLR 72; [2020] NSWCCA 48
- R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 32
- Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3
- R v Dainer; Ex parte Milevich (1988) 91 FLR 33
- Farlie v Ross [2004] NSWSC 1001
- 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
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
- R v Keane [1994] 2 All ER 478