Cliftleigh Haulage Pty Ltd v Byron Shire Council

In the matter of Cliftleigh Haulage Pty Ltd v Byron Shire Council, the respondent appealed against a decision by Talbot J to order the respondent to pay costs to the appellant. The appellant had been convicted of an offence under the Environmental Protection Act 1997 (NSW) but the conviction was later set aside. The appellant sought costs under section 70 of the Criminal Procedure Act 1986 (NSW). The primary issue was whether the respondent had unreasonably failed to investigate or investigate properly any relevant matter, and whether the appellant was entitled to costs. The appellant argued that the failure to call a witness, Mr. Harrop, was unreasonable and that the respondent should have been aware of the potential evidence he could provide.

The court examined whether the investigation was conducted in an unreasonable manner and whether the respondent unreasonably failed to investigate any relevant matter. The court held that the failure to call Mr. Harrop was not relevant to the investigation but rather to the manner in which the proceedings were conducted. The court found that the respondent should have questioned Mr. Harrop about his observations regarding the crushing of cars and the presence of employees at the site, particularly after the appellant had denied any presence of authorized personnel. The court noted that while it was arguable that it was unreasonable to rely solely on circumstantial evidence after the appellant's assertion, it was not sufficient to suggest that the appellant might not be guilty or that the proceedings should not have been brought.

The court held that under section 70(1)(a), it was not necessary for the appellant to prove what an absent witness would have said if it was clear that the investigation was conducted unreasonably. The court reasoned that if a prosecutor knows of multiple witnesses but interviews only one, and the prosecution fails, the section may apply even without proof of what the other witnesses would have said. Similarly, if the prosecutor knows of a potential witness but does not interview them, and relies solely on circumstantial evidence, section 70(1)(a) may still be satisfied.

The court found no error in the primary judge's decision regarding section 70(1)(c) but held that the appellant was entitled to costs under section 70(1)(a) due to the unreasonable failure to investigate. The court ordered the respondent to pay the appellant’s costs of the appeal.