Gordon Plath of the Department of Environment and Climate Change v Vurlow; Gordon Plath of the Department of Environment and Climate Change v Hockey

[2009] NSWLEC 102

Land and Environment Court

of New South Wales

CITATION:	Gordon Plath of the Department of Environment and Climate Change v Vurlow; Gordon Plath of the Department of Environment and Climate Change v Hockey; Gordon Plath of the Department of Environment and Climate Change v Southton [2009] NSWLEC 102
PARTIES:	PROSECUTOR Gordon Plath of the Department of Environment and Climate Change DEFENDANTS Glenn David Vurlow (08/50088) Brian George Hockey (08/50089) Donald Esmond Southton (08/50090)
FILE NUMBER(S):	50088 of 2008; 50089 of 2008; 50090 of 2008
CORAM:	Pain J
KEY ISSUES:	COSTS :- application by defendants for costs under Criminal Procedure Act 1986 after summons dismissed - application by defendants for certificate under Costs in Criminal Cases Act 1967 - whether prosecutor's investigation of alleged offences unreasonable - whether commencement of proceedings unreasonable - whether omission of defendants to serve expert report before hearing relevant to issuing of certificate
LEGISLATION CITED:	Costs in Criminal Cases Act 1967 s 2, 3 Criminal Procedure Act 1986 s 257C, 257D Justices Act 1902 s 41A(2A) (repealed) National Parks and Wildlife Act 1974 s 118(2) Supreme Court Rules 1970 Part 75 Threatened Species Conservation Act 1995
CASES CITED:	Fosse v Department of Public Prosecutions [1999] NSWSC 367 Gales Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209 Halpin v Department of Gaming and Racing [2007] NSWSC 815 JD v DPP [2000] NSWSC 1092 Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 Mordaunt v Director of Public Prosecutions (NSW) (2007) 171 ACrimR 510 Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) (2009) 165 LGERA 6 Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro (No 7) (2008) 159 LGERA 87 R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470 R v Johnston [2000] NSWCCA 197 Wollongong City Council v Ensile Pty Ltd; Wollongong City Council v Hogarth (No 9) [2008] NSWLEC 248
DATES OF HEARING:	15 June 2009 16 June 2009 17 June 2009 18 June 2009
DATE OF JUDGMENT:	1 July 2009
LEGAL REPRESENTATIVES:	PROSECUTOR Ms G Furness SOLICITORS Department of Environment and Climate Change DEFENDANTS Mr T Howard SOLICITORS Stacks Northern Rivers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

1 July 2009

50088-90 of 2005 Gordon Plath of the Department of Environment & Climate Change v Vurlow Glen, Hockey Brian & Southon Donald

JUDGMENT ON COSTS

1 Her Honour: Three prosecutions were heard together for the offence that vegetation, an endangered ecological community (EEC), on three properties at Dulguigan, New South Wales, was cleared in breach of s 118A(2) of the National Parks and Wildlife Act 1974 (the NPW Act). The EEC is known as “Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions”. Its listing in Schedule 1 of the Threatened Species Conservation Act 1995 occurred after the determination of the NSW Scientific Committee was gazetted on 17 December 2004. On 18 June 2009, the fourth day of hearing, the Prosecutor advised the Court that it did not wish to proceed with the three prosecutions. Each summons was dismissed on that day.

2 The description of the EEC in the determination of the NSW Scientific Committee on 13 December 2004 describes the vegetation as being “associated with humic clay loams and sandy loams, on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains”, in other words, alluvial soil.

3 The Defendants served a report of a soil scientist, Dr Pamela Hazelton, dated 9 June 2009 after the close of the Prosecutor’s case on 16 June 2009. The report identified the soil in the area where the vegetation was cleared as being derived from ”in situ” parent material. This weathered parent material has been acted upon by the soil forming process of podzolisation to form the existing soil. It is not alluvial soil. Dr Hazelton inspected the three landholdings on 10 March 2009 and 12 pits were excavated and examined. Dr Hazelton also observed the topography of the properties. Dr Hazelton relied on D J Morand et al, Soil Landscapes of the Murwillumbah-Tweed Heads 1:100 000 map sheet published by the NSW Department of Land and Water Conservation in 1996 (the Morand mapping) which describes the soil landscape as an erosional landscape consisting generally of steep to undulating hill slopes. The report of Dr Hazelton meant that the cleared vegetation the subject of the prosecution was not on soil identified as one of the criteria for EEC.

4 The report of an ecologist, Ms McKinley, called by the Prosecutor had identified the soil where the vegetation was cleared as alluvial. Table 1 on p 29 of her report (titled “Swamp Sclerophyll Forest EEC characteristics and whether or not swamp sclerophyll forest at Sites 1A and 1B meet criteria”) stated that the soils at the relevant sites were humic clay loams. Waterlogged soils were present and the areas were periodically inundated and on a drainage line associated with a coastal floodplain. Her report stated at p 6:

3. Limitations
…

Description of soil type
Soil texture and colour was noted although not closely examined

5 The Prosecutor also relied on three affidavits of Mr Goodwin, a ranger employed by the Department of Environment and Climate Change (DECC) in the Tweed Area, dated 17 September 2008, 11 December 2008 and 20 May 2009. He gave evidence as an expert witness that the cleared vegetation was swamp sclerophyll forest EEC.

6 The Defendants now seek orders that their legal costs be paid by the Prosecutor under s 257C of the Criminal Procedure Act 1986 (the CP Act). If no orders are made under the CP Act, in the alternative certificates are sought by the Defendants under s 2 of the Costs in Criminal Cases Act 1967 (the CCC Act).

Criminal Procedure Act 1986

7 Section 257C of the CP Act provides:

257C When professional costs may be awarded to accused person

(1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(2) The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G.

(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if:
(a) the accused person is discharged as to the offence the subject of the proceedings, or
(b) the matter is dismissed because the prosecutor fails to appear, or
(c) the matter is withdrawn or the proceedings are for any reason invalid.

8 Section 257D provides:

257D Limit on award of professional costs against a prosecutor acting in a public capacity

(1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,
(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

…

9 There is no dispute that the Prosecutor was acting in a public capacity.

Costs in Criminal Cases Act 1967

10 Sections 2 and 3 of the CCC Act provide:

2 Certificate may be granted
(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or
(b) where, on appeal, the conviction of the defendant is quashed and:
(i) the defendant is discharged as to the indictment upon which he or she was convicted, or
(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.
…

3 Form of certificate
(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. …
Defendants’ submissions

11 The Defendants rely on ss (c), (a) and (b) (the latter to a lesser extent) of s 257D(1). The primary ground relied on by the Defendants is ss (c), that there was an unreasonable failure to investigate properly a matter the Prosecutor ought to have been aware of and which suggested the prosecutions should not be brought. The Prosecutor has failed to establish an essential element of the offence, namely that the vegetation cleared was the EEC known as “Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions”. The description of the EEC community in the Scientific Committee’s determination included as an essential part the type of soil on which specified vegetation occurs. The decision in Gales Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209 identifies the edaphic, topographic and locational features of the soil which should be considered when determining if this EEC is present. That decision also refers to the Morand mapping of soil landscapes in the Murwillumbah-Tweed Heads area. The failure to establish that the soil met the description of the EEC is a fundamental failure to establish an essential element of the offence. That failure was due to a failure to investigate properly and was unreasonable. The relevant principles were identified by Hidden J in JD v DPP [2000] NSWSC 1092.

12 The investigation of the soil by Ms McKinley, ecologist, was rudimentary only. Her evidence stated that the soil was not closely examined. Her evidence was that she had picked up soil at the site and crumbled it in her hands. She agreed in cross-examination that she had assumed that the soil was alluvial. She also failed to consider the Morand mapping referred to in Gales Holdings and agreed in cross-examination she had not looked at it.

13 The investigation fell well below what was required, namely an investigation of an expert to objectively determine whether the description of the EEC was satisfied including the type of soil. That the soil was not alluvial was a matter the Prosecutor should have been aware of. There was an unreasonable failure to investigate the matter properly.

14 The same submissions can be made in relation to ss (a) that the investigation was conducted in an unreasonable manner. Unreasonableness does not impugn the competency or integrity of those carrying out the investigation. There was a failure to make proper inquiries.

15 Section 257D(1)(b) is also relied on, only as to the initiation of the proceedings being without reasonable cause relying on Wilcox J in Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 at 264. Hidden J in JD v DPP also stated at [28] that deciding whether proceedings had been initiated without reasonable cause was to be answered by reference to the quality of the evidence gathered “with an eye not only to the enquiries which had been made but also to those which should have been made”. There is overlap between the subsections in s 257D(1).

16 The facts in Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) (2009) 165 LGERA 6 are different. In that matter the Court declined to award costs to a defendant following a successful no case submission. The case turned on a contested construction of a tree preservation order. This case does not involve construction issues about which minds may differ. If any of the grounds in s 257D are satisfied then the Defendants are entitled to their costs from the Prosecutor.

17 The omission of the Defendants to serve the report of Dr Hazelton before the hearing is not relevant to the application of s 257D(1).

18 In relation to the application of s 3 of the CCC Act, the principles are identified by McColl JA in Mordaunt v Director of Public Prosecutions (2007) 171 ACrimR 510 at [36]. The omission by the Defendants to disclose the expert evidence of Dr Hazelton was reasonable in the circumstances as the Defendants are under no obligation to provide evidence in advance of the hearing.

Prosecutor’s submissions

19 No costs order ought be made in the Defendants’ favour. Even if I am satisfied that Ms McKinley did fail in her investigation of the EEC criteria identified in the Scientific Committee’s determination that failure was not unreasonable, as referred to in s 257D(1)(c) and (a). In any event there was no failure to investigate by Ms McKinley. Ms McKinley visited the site on four occasions, made detailed inspections and took many photographs. She considered DECC mapping on flood plains in the area. Her report shows she was familiar with the area and its soils. She did physically examine the soil. She was aware that the type of soil was relevant to the identification of the EEC as identified in table 1 on p 29 of her report. She clearly considered that issue and was aware of its relevance. That the prosecutions did not proceed after service of the report of Dr Hazelton does not give rise to any inference that there was no reasonable cause of action at the time they were commenced. There was no unreasonable failure to investigate or investigate properly on either Ms McKinely’s written or oral evidence.

20 Ms McKinley was aware of the Morand mapping as stated in her cross-examination. Her evidence was that it was broad scale only and therefore of limited assistance. It was necessary to visit the site to consider the soils, as occurred in the preparation of her report and that of Dr Hazelton. The Morand mapping is not definitive of soil type on its own. That Ms McKinley did not investigate the soil by digging test pits, as Dr Hazelton did, does not give rise to a finding that her investigation was unreasonably deficient.

21 Had the Defendants served the report of Dr Hazelton and the Prosecutor proceeded with the prosecutions then there might be unreasonable behaviour but there is nothing unreasonable about what has occurred so far. Further, while there was no obligation on the Defendants to serve the expert report of Dr Hazelton there was nothing to prevent them doing so. Dr Hazelton’s report was prepared in March 2009 (dated 9 June 2009). Had it been served, its impact on the proceedings could have been assessed and appropriate action taken by the Prosecutor.

22 There was no failure in relation to s 257D(1)(b) as the proceedings were initiated with evidence capable of proving each element of the offence. There was evidence from Ms McKinley and Mr Goodwin, the DECC ranger, to support a finding that the trees cleared were part of the EEC. There was evidence capable of being accepted by the Court that the EEC existed in order to support the charge.

23 A1 Professional Tree Recycling most closely resembles this matter. Wollongong City Council v Ensile Pty Ltd; Wollongong City Council v Hogarth (No 9) [2008] NSWLEC 248 had quite different facts and there were a number of failures of the council prosecution including the failure to search its own records. Gales Holdings is a completely different matter, the site had been extensively considered and that gave rise to lengthy evidence in Class 1 merit appeal proceedings. That decision does not support a finding that every report on the EEC requires that level of detail and must refer to the same material, that is, the Morand mapping.

Finding

24 Under the CP Act, costs may be awarded in favour of a defendant where a prosecution is withdrawn (s 257C(3)(c)). The circumstances in which costs may be awarded to a defendant under s 257C are limited to the circumstances about which a court must be satisfied in s 257D(1). The Defendants have the onus of establishing that s 257D(1) applies, Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro (No 7) (2008) 159 LGERA 87 (Lawlor No 7) at [65] referring to Fosse v Director of Public Prosecutions [1999] NSWSC 367 (which considered the equivalent provision to s 257D under the now-repealed Justices Act 1902.)

25 The principles for the award of costs under s 257D(1) were considered in Lawlor No 7 (2008), Ensile (2008) and A1 Professional Tree Recycling (2009). In Lawlor No 7 I addressed the question, inter alia, of whether proceedings had been commenced without reasonable cause in the context of a prosecution for the destruction of a large number of trees the subject of a tree preservation order. The prosecution of the defendants had proceeded on the grounds of a joint criminal enterprise. The facts of that matter are quite different to this case. In relation to s 257D(1)(c) I applied the reasoning of Hall J in Halpinv Department of Gaming and Racing [2007] NSWSC 815 at [60], who held the relevant test was whether the conduct of the investigation had fallen below the relevant standards applicable to the type or class of investigation, essentially a subjective test. His Honour identified this test as being based on the decision of Hidden J in JD v DPP. In relation to s 257D(1)(b) I relied on the approach identified in Halpin and of Wilcox J in Kanan.

26 In Ensile (2008) the defendant in an unsuccessful prosecution for land clearing obtained an order under s 257D. Jagot J awarded costs under s 257D(1)(c) and (a) and held the investigation was conducted in an unreasonable manner due to the failure of the council to properly investigate prior to the commencement of proceedings whether the council itself had given consent to the clearing or whether there were existing or continuing use rights associated with the land, inter alia. Her Honour noted at [10] that Halpin incorrectly applied Hidden J in JD v DPP.

27 Hidden J in JD v DPP held that the test of requiring that an investigation fell “grossly below optimum standards” was not correct, rather the test was purely objective. That case was an appeal to the Supreme Court against the decision of a magistrate not to award a defendant costs under s 41A(2A) of the Justices Act 1902 (now repealed) which was a provision in equivalent terms to s 257D. The magistrate decided that costs could not be ordered on the basis that the investigation was not conducted in an unreasonable or improper manner unless it fell grossly below optimum standards. Hidden J at [31] held that an investigation could be characterised as unreasonable even though it does not fall grossly below optimum standards. Hidden J said at [31] in relation to whether there had been unreasonableness in the investigation:

The test is purely objective. To find that the conduct of the investigation of a particular case was unreasonable does not necessarily impugn the general competence, far less the integrity, of those responsible for it.

28 In A1 Professional Tree Recycling (2009) Biscoe J usefully set out principles for the application of s 257D at [15] after reviewing the earlier authorities referred to above. The relevant principles for this matter are:

…
(d) as to the exception in s 257(1)(a) (that the investigation was conducted in an unreasonable or improper manner)
(i) the test is purely objective. The test is not whether the investigation fell “grossly below optimum standards”: JD at [29]–[30]; Wollongong at [77]. The question whether proceedings have been initiated without reasonable cause is to be answered by reference to the quality of the evidence gathered “with an eye not only to the enquiries which had been made but also to those which should have been made”: JD at [28]; Wollongong at [8];
(ii) it is unnecessary in every case for the defendant to show that an investigation conducted in a reasonable manner would have suggested that the defendant might not be guilty or that the proceedings ought not to be brought: Cliftleigh at [21];
(iii) a conclusion that the investigation was conducted in an unreasonable manner does not impugn the general competence, far less the integrity, of those responsible for the investigation: JD at [31], Wollongong at [7].
(e) as to the exception in s 257D(1)(b) (that the proceedings were initiated without reasonable cause):
(i) the failure of proceedings does not, of itself, mean that the proceedings were initiated without reasonable cause: R v Moore at 473; Wollongong at [9];
(ii) proceedings will be instituted without reasonable cause if, objectively assessed on the facts or the facts apparent at the time of initiating the proceedings, they had no real prospects of success or were doomed to failure: Council of Kangan at [60]; Kanan at 6; Wollongong at [9].

29 In that case Biscoe J declined to make an order for costs after the unsuccessful prosecution for alleged unlawful clearing of bushland contrary to a tree preservation order.

30 Before making an award of costs under s 257C the Court must be satisfied of at least one of the matters in s 257D(1). In relation to s 257D(1)(a) and (c) of the CP Act which both concern whether the investigation of the offences was reasonable, the relevant principles are as identified in A1 Professional Tree Recycling in relation to s 257(1)(a) including the approach of Hidden J in JD v DPP, inter alia. The test is an objective one and should consider what inquiries were made and should have been made by the Prosecutor’s investigation. The Defendants argue that the Prosecutor should have investigated the soil type for the EEC more diligently. Given the limitations referred to in relation to soil type in the report of Ms McKinley, more investigation should have been undertaken.

31 I agree with the Prosecutor’s submission that there has not been an unreasonable failure to investigate properly whether the vegetation was an EEC, contrary to the Defendants’ submissions. The written report of Ms McKinley did address all the elements of the offence, including the soil type as indicated in table 1 on p 29 of her report. While her report included a limitation in relation to the description of soil she did undertake investigations such as physically examining the soil and referred to relevant mapping. Her report stated that she considered mapping by Hashimoto, R et al (2004) New South Wales Coastal Quaternary Geology – Digital Dataset, NSW Department of Primary Industries, Mineral Resources for Comprehensive Coastal Assessment. Her oral evidence was that she was aware of the Morand mapping on which the Defendants particularly relied and considered it was too broad scale to be definitive. I do not consider in these circumstances there was a failure to properly investigate or if there was, that the failure was unreasonable.

32 I also agree with the Prosecutor’s submissions that the matters outlined in considerable detail in Gales Holdings are not required to be replicated in every other matter considering the type of EEC the subject of these proceedings. The discussion in GalesHoldings no doubt reflected evidence obtained in relation to a site that had been extensively studied. The nature of a Class 1 merit appeal is quite different to a criminal prosecution. The evidence of Ms McKinley suggests that other mapping apart from the Morand mapping was available and was also appropriate to consider. I am not satisfied that the Prosecutor unreasonably failed to investigate any relevant matter of which it was aware which suggested the Defendants were not guilty under s 257D(1)(c). Similarly in relation to s 257D(1)(a), I am not satisfied that the investigation was conducted in an improper manner.

33 In relation to s 257D(1)(b), whether the proceedings were unreasonably instituted, as identified in A1 Professional Tree Recycling referring to R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470, Ensile and Kanan, the failure of proceedings does not of itself mean that proceedings were initiated without real cause. In Kanan Wilcox J stated at 264:

one way of testing whether a proceeding is instituted “without reasonable cause'’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

34 I must consider whether the facts assessed objectively at the time proceedings were commenced were such that the proceedings were doomed to fail. I do not consider they were for the reasons given by the Prosecutor as set out above in par 22. The Defendants’ applications for costs orders under s 257C of the CP Act are unsuccessful.

Costs in Criminal Cases Act 1967

35 As I do not intend to make orders for the payment of the Defendants’ costs under the CP Act, I will now consider whether certificates ought be issued under the CCC Act. There was no dispute raised that section 2(1)(a) applies in this matter as the summonses have been dismissed, which has the same effect as an acquittal or discharge of the offence. A certificate if granted under s 3 must state that in my opinion if the Prosecution had been in possession of evidence of all the relevant facts it would not have been reasonable to institute the proceedings. Further the certificate must state that any omission by the Defendants which contributed or might have contributed to the institution or continuation of proceedings was reasonable. Whether a certificate should be issued is at the discretion of the trial judge. McColl JA in Mordaunt set out applicable principles at [36] when considering whether to issue a s 2 certificate:

(a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher JA, Handley JA;
…
(d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing);
(e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559 – 560); the judicial officer considering an application must find what, within the Act, were “all the relevant facts” and assume the prosecution to have been “in possession of evidence of” all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, “it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the “facts issue” and the “reasonableness issue”: Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 – 135) per Kirby P;
(f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 – 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 – 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed);
…

36 The Defendants bear the onus of establishing that a certificate ought be issued because it was not reasonable for the Prosecutor to institute the proceedings. The Defendants rely on Dr Hazelton’s report in which she forms a different view of the soil type to that of Ms McKinley to support the argument that it was not reasonable for the Prosecutor to commence the three prosecutions. The principles in Mordaunt emphasise the beneficial nature of the CCC Act; at [36(a)]. The hypothetical question for the judicial officer to consider is what all the relevant facts were, assume that the prosecutor was in possession of all the relevant facts proved in the course of the proceedings and then decide if it was reasonable to institute the proceedings. Part of the Scientific Committee’s description of the relevant EEC includes soil type. There was evidence in Ms McKinley’s report on the soil type as referred to in the Scientific Committee’s description. Dr Hazelton’s report provides her expert opinion that the soil type on the Defendants’ lands is not that described in the Scientific Committee’s determination for the EEC the subject of the prosecutions. Had the Prosecutor been in possession of Dr Hazelton’s report before the proceedings were commenced then I would have held that it was unreasonable to commence the proceedings but the Prosecutor was not in possession of the report. Dr Hazelton’s report was not served until the end of the Prosecutor’s evidence in the hearing.

37 Section 3(1)(b) of the CCC Act therefore arises as that requires a certificate to state that an omission by a defendant which contributed to the institution or continuation of the proceedings was reasonable. In R v Johnston [2000] NSWCCA 197 Simpson J held (Wood CJ at CL and Sully J concurring) at [18] – [19]:

18 … In practical terms, s 3(1)(b) will be primarily directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; but it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution. By the inclusion of the evaluation of reasonableness in this respect the legislature has recognised that tactical considerations and decisions are legitimate in the defence of criminal charges, and has recognised the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case. It is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances.

19 Because of the variety of circumstances which will be relevant to the various assessments that must be made under the section, it is not possible to state any inclusive test. Each case must be considered on its own merits and in the light of the relevant circumstances. …

38 I consider the omission by the Defendants of not serving the expert report of Dr Hazelton was the primary factor which contributed to the Prosecutor continuing with the three prosecutions. Once Dr Hazelton’s report was tendered all three prosecutions came to an end. The summonses commencing the proceedings were filed in December 2008. The test pits on the three properties were dug by Dr Hazelton on 10 March 2009. Her report was dated 9 June 2009. The hearing commenced on 13 June 2009. While the Defendants correctly argue that they were not required to serve the report under the present criminal procedure rules in the Land and Environment Court (Part 75 of the Supreme Court Rules 1970) that does not mean in the context of the awarding of costs that the omission was reasonable in the circumstances. No court rule prevented the Defendants from serving the report earlier, as the Prosecutor submitted. Commonsense and the desirability of avoiding litigation be it civil or criminal suggests that would have been an appropriate course as it is highly likely the Prosecutor would have reconsidered whether to continue with the three prosecutions had Dr Hazelton’s report been received before the hearing. The omission was not reasonable in the circumstances. Accordingly I will exercise my discretion not to grant a certificate under s 2 of the CCC Act.