Sutherland Shire Council v Benedict Industries Pty Ltd (No 6)

[2015] NSWLEC 106

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sutherland Shire Council v Benedict Industries Pty Ltd (No 6) [2015] NSWLEC 106

Hearing dates:

22 and 23 June 2015

Decision date:

29 June 2015

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

See at [48].

Catchwords:

COSTS: whether prosecutor should be ordered to pay accused’s costs consequent upon an adjournment of a four week trial caused by the service of additional and late evidence by the prosecutor – whether conduct of prosecutor unreasonable – whether sufficient evidence of additional costs – whether causal nexus established between unreasonable conduct and additional costs – prosecutor ordered to pay accused costs as agreed or assessed

Legislation Cited:

Criminal Procedure Act 1986, s 257B, s 257F, s 257G, s 257N

Cases Cited:

Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56

 

Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2014] NSWLEC 191

 

Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121

 

Sutherland Shire Council v Benedict Industries (No 2) [2015] NSWLEC 39

Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97

Category:

Costs

Parties:

Sutherland Shire Council (Prosecutor)
Benedict Industries Pty Ltd (Defendant)

Representation:

Counsel:
Mr D Buchanan SC (Prosecutor)
Mr T Howard SC with Mr C Ireland (Defendant)

  Solicitors:
Pikes & Verekers Lawyers (Prosecutor)
Minter Ellison (Defendant)

File Number(s):

12/50921, 12/50923, 13/50100

Judgment

The Accused Seeks Payment of Additional Costs Occasioned by the Vacation of the Hearing Due to the Service of New and Late Evidence by the Prosecutor

1. Pursuant to s 257F of the Criminal Procedure Act 1986 (“the CPA”), the accused in criminal proceedings in Class 5 of the Court’s jurisdiction, Benedict Industries Pty Ltd (“Benedict”), seeks its additional costs of the adjournment of a four week hearing.

2. The reason for the adjournment of the trial was due to the late service of a substantial body of new evidence by the prosecutor, Sutherland Shire Council (“the council”). This evidence comprised an affidavit of Ms Ellen Whittingstall sworn on 22 May 2015, and nine further ‘search team’ affidavits, served in a piecemeal fashion between 1 and 5 June 2015.

3. The circumstances giving rise to the service of this evidence have been set out in detail by the Court in Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97. I rely, without repetition, on the facts as found in that decision.

4. In short, in Benedict (No 3) the Court granted an adjournment because not to do so would have resulted in injustice and unfairness to Benedict, but to exclude the new evidence would have caused potentially fatal prejudice to the council (at [53] –[93]).

5. During the course of the judgment the Court made the following finding (at [49] and [50]):

49   Benedict submitted that it or its legal representatives would need to undertake the following steps in order to be in a position to deal with the new evidence sought to be relied upon by the prosecutor:

(a)   first, carefully read and properly comprehend the totality of the new evidence;

(b)   second, consider what advice to give Benedict in relation to the new material and its implications for the future conduct of the proceedings;

(c)   third, form a view as to whether advice or guidance in relation to the new evidence should be sought from a person with specialised knowledge in relation record keeping and archiving, and advise Benedict in this regard;

(d)   fourth, assuming instructions were given to engage such an expert, identify and instruct the expert;

(e)   fifth, undertake searches of the same material that both Ms Whittingstall and the search team searched. This includes the council minute books, files and databases referred to in the new evidence in order to test representations in various affidavits as to what is and what was is not present in that material;

(f)   sixth, consider whether to issue further subpoenas or notices to produce arising from the new evidence and, if production is forthcoming, read and analyse this material;

(g)   seventh, consider what, if any, evidence Benedict should adduce in reply; and

(h)   eighth, formulate objections to the new affidavit material and supplement its s 247K notice as a consequence.

50   Although these steps were not stated in the affidavit of Mr Walker, their necessity is a matter of litigation common sense.

6. The question of whether the council should pay Benedict’s costs occasioned by the adjournment of the trial was, at the request of the parties, reserved in Benedict (No 3).

7. As a consequence of the judgment (and after rejecting a collateral challenge to four of the five charges by Benedict), the following orders were made by the Court on 22 June 2015, prior to the commencement of this application:

1   The Defendant shall file and serve a Consolidated List of Objections to the Prosecutor’s affidavits by 2 October 2015.

2   The Defendant is to give notice to the Prosecutor by 20 July 2015 of those deponents required to attend the hearing for the purpose of cross-examination.

3   The proceedings are listed for a pre-trial hearing on 30 October 2015 at a time to be advised.

4   Liberty to restore on three days’ notice.

8. The orders were contained in agreed short minutes of order handed up by the parties to the Court.

9. On 22 June 2015 the matter was also set down again for hearing for a period of four weeks commencing on 19 November 2015. Prior to these dates being selected the parties’ legal representatives had been in communication with each other, and the Court, to find a mutually convenient time to set the matter down again for hearing.

10. For the reasons that follow, I am satisfied that additional costs have been incurred by Benedict as a consequence of the council’s unreasonable conduct leading to the adjournment of the hearing. Accordingly, the council must pay these costs.

Applicable Legal Principles and Issues for Determination

11. Section 257F of the CPA provides that costs may be payable upon an adjournment:

257F Costs on adjournment

(1) A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.

(2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.

(3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.

(4) An order may be made whatever the result of the proceedings.

12. The legal principles applicable to the resolution of when costs may be ordered in the case of an adjournment in proceedings to which Div 4 of Ch 4 of the CPA applies were recently discussed by Preston J in Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56 (at [105] –[142]).

13. Relevantly for present purposes, his Honour stated that (at [132] – [141]):

132 I agree with the Council’s construction of s 257F and the argument that the costs claimed by Trico are not additional costs that the Council can be ordered to pay. Before a court may order one party to pay costs under s 257F:

(a) the matter must be adjourned (“if the matter is adjourned”);

(b) the other party must incur “additional costs”; and

(c) the Court must be satisfied that these additional costs have been incurred “because of the unreasonable conduct or delays” of the party against whom the order is made.

133   The reference point for determining whether costs are “additional costs” is the adjournment of the matter, not the unreasonable conduct or delays of a party. A cost is an additional cost if it will be incurred if the matter is adjourned but will not be incurred if the matter is not adjourned. It is an “additional” cost in the sense that it is additional to the costs incurred if there is no adjournment.

134   It is only these “additional costs” that the court can order a party to pay. If the costs incurred are not “additional costs” they do not fall within subs (2) and cannot be the subject of an order for costs under subs (1).

135 However, there is a further limitation in subs (2) - the additional costs must have been incurred “because of the unreasonable conduct or delays of the party against whom the order is made”. An order under s 257F(1) cannot be made with respect to every cost that is an additional cost, only those additional costs that are incurred because of the unreasonable conduct or delays of the party against whom the order is made. If the court is satisfied that the additional costs are incurred because of some other cause than the conduct or delay of the party against whom the order is made, or because the conduct or delay of that party falls short of being unreasonable conduct or delay, then the required causal nexus in subs (2) will not be met and the court has no power to make an order that the party pay those costs.

136 Section 257F, therefore, requires costs to have two causal relationships: first, the cost must be incurred by the matter being adjourned - this makes them additional costs; and secondly, these additional costs must be incurred because of the unreasonable conduct or delays of the party against whom the order is made.

137 I do not accept Trico’s construction of s 257F that conflates these two causal relationships into only one. Trico’s construction was that a cost will be “additional” if it is incurred because of the unreasonable conduct or delays of the party against whom the order is made. This gives the word “additional” no work to do - it would be redundant in the subclause. Trico’s construction would result even if the word “additional” were omitted. The only test would be if the cost was incurred because of the unreasonable conduct or delays of the party. If that causal nexus is established, the court could make an order but if it is not established, the court could not make an order - there is nothing additional about the costs that the court can order compared to the costs it cannot order.

138   Trico’s construction also does not give sufficient attention to the link between subss (1) and (2). The order referred to in subs (2) is clearly the order that can be made under subs (1). An order under subs (1) can only be made that the party pay costs “if the matter is adjourned”. Subsection (2) then provides that an order under subs (1) that a party pay costs can only be made if the court is satisfied that the other party has incurred “additional costs”. The use of this term limits the costs that the court may order under subs (1). The court can only make an order under subs (1) that a party pay the “additional costs”. Hence, subs (1) is to be read as empowering the court to order that one party pay the additional costs incurred if the matter is adjourned. This reading then makes plain that what causes a cost to be an additional cost is the matter being adjourned.

139   This requirement that the cost be “additional costs” necessarily must be satisfied before the next requirement in subs (2), that the additional costs be incurred because of the unreasonable conduct or delays of the party, can be satisfied. The court cannot begin to be satisfied that additional costs have the necessary causal nexus with the unreasonable conduct or delays of the party until it has first ascertained what are the additional costs that have been incurred.

140 Applying this construction of s 257F, none of the categories of costs identified by Trico can be described as “additional costs”. They were not costs that would not have been incurred if the matter had not been adjourned but were incurred by the matter being adjourned. The adjournment of the matter had no causal relationship to the incurring of the costs. Hence, the costs incurred were not “additional costs” incurred by the matter being adjourned.

141 Once it is determined that the costs claimed by Trico are not additional costs, the Court has no power under s 257F(1) to order the Council to pay those costs to Trico. It is irrelevant whether those costs were incurred because of the unreasonable conduct or delays of the Council. That only matters if the costs could have been described as “additional costs”.

14. I respectfully endorse, adopt, and apply this reasoning.

15. Given that the matter has been adjourned, the remaining issues that fall for determination by the Court in this application are (Trico at [132]):

1. first, whether the Court is satisfied that Benedict “has” incurred “additional costs”; and

2. second, whether the Court is satisfied that these additional costs have been incurred “because of the unreasonable conduct or delays” of the council.

Has Benedict Incurred Additional Costs?

16. No affidavit evidence was put before the Court by Benedict detailing what, if any, additional costs it had incurred by reason of the adjournment. The council therefore argued that Benedict had not demonstrated that additional costs had been incurred by it as a consequence of the adjournment as at the date of the application for costs.

17. Leaving aside the question of whether or not, as the council submitted, the verb “has incurred” should be construed as only referring to additional costs that have actually crystallised, as opposed to costs that will occur but have not yet accrued (for example, the losses referred to above at [5]), there is nonetheless sufficient evidence before me that this precondition to the exercise of my discretionary power has been satisfied, albeit by way of inference.

18. At the very least, these costs include:

1. the cost of preparing the short minutes of order for the future conduct of the matter;

2. the cost of negotiating dates to set the matter down for final hearing;

3. some of the costs referred to above at [5], insofar as some of this work will have already commenced; and

4. the cost of preparing for and arguing this application.

19. These are plainly costs that are “additional” in the sense that they are “additional to the costs incurred if there is no adjournment” (Trico at [134]). No affidavit is required to demonstrate that these self-evident additional costs have been incurred by Benedict. And no affidavit is required setting out the quantum of these costs. This is because both ss 257F(3) and 257G allow for the calculation of the additional costs after an order for their payment has been made.

20. In any in event, in my opinion, the verb “has incurred” ought, having regard to the language of the provision and its context, including its purpose, to be interpreted as including costs that have been incurred and that will, as a matter of certainty, have to be incurred, but not costs that may incur. Thus, it may be taken, if not as a matter of judicial notice, then as a matter of inference, that between now and the hearing in November 2015 additional costs will have been incurred by Benedict occasioned by the adjournment.

21. To construe s 257F(2) in the manner contended for by the council would mean that the Court would be in effect precluded from making the order (and the parties from bringing an application) until well after the matter’s adjournment in order to ensure that a party had in fact incurred additional costs. The inefficiencies of such an approach are manifest and would have the tendency of blunting the policy objective underpinning the provision, namely, to ensure that parties comply with orders for the preparation of matters for hearing, to ensure that proceedings are not unnecessarily adjourned (with all of the attendant legal and emotional costs and the waste of curial resources), and to encourage the efficient conduct of criminal trials.

Were the Additional Costs Incurred Because of the Unreasonable Conduct or Delay of the Council?

22. Not all additional costs may be the subject of an order under s 257B of the CPA. The Court only has the power to order payment of those additional costs which have a causal nexus with the unreasonable conduct or delay of the council (in this instance, it is the council that is the party against whom the order was made, given that it was the council that sought leave to adduce the new and late evidence). If, as was observed in Trico (at [135]), the additional costs were incurred for some other reason, or if the Court is not satisfied that conduct or delay is unreasonable, the Court cannot make the order.

23. It is convenient at this juncture to deal with the submission of Benedict that the adjective “unreasonable” in s 257F(2) only qualifies the conduct of offending party and not the delay. That is to say, mere delay had to be demonstrated giving rise to additional costs, and not unreasonable delay.

24. Although the point does not appear to have been argued before Preston J in Trico, it may be quickly rejected having regard to his Honour’s reasoning, which is not only not plainly wrong, but is, in my respectful opinion, plainly right. In Trico Preston J opined that (at [135], emphasis added):

...If the court is satisfied that the additional costs are incurred because of some other cause than the conduct or delay of the party against whom the order is made, or because the conduct or delay of that party falls short of being unreasonable conduct or delay, then the required causal nexus in subs (2) will not be met and the court has no power to make an order that the party pay those costs.

25. It is therefore clear from this passage that either the delay or the impugned conduct must be unreasonable.

26. This was also the emphatic conclusion reached by the Court in Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2014] NSWLEC 191, where the Court said (at [32] – [36]):

32   A preliminary issue arose as to whether or not the adjective "unreasonable" qualified both the conduct and the delay of the EPA or, as was submitted by Riverina, merely the EPA's conduct, and therefore, that any delay on the part of the EPA would engage the Court's discretion to award costs.

33 Riverina relied on the decision in Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 to assert that it was sufficient if the EPA was responsible for the delay giving rise to the additional costs burden suffered by it. In that case, Pain J stated that (at [109]):

109 The chronology identified in the solicitor's affidavits does not suggest any greater fault by one party than the other in achieving the finalisation of the SOAF. I do not agree with the prosecutor's submission that there was obviously delay on the defendant's part given the lengthy SOAF which had to be negotiated and the uncertainty about whether additional evidence should or could be relied on by the prosecutor. Costs when ordered are compensatory; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. I have discretion in how costs ought be awarded under s 257F, provided I make any order judicially. I consider each party should pay its costs of the vacation in light of the circumstances giving rise to the vacation.

34   The absence of any reference to "unreasonable" delay on the part of the defendant in Buchanan (No 2) was said by Riverina to provide support for its contention.

35 But in my opinion, this is a misreading of her Honour's reasons. As is apparent from paragraph [100] of Pain J's judgment, the application by the prosecutor for an order that the defendant pay its costs was, consistent with the language in s 257F(2) of the CPA, premised on the "unreasonable delays" of the defendant. It is this application that the Court addressed and determined in Buchanan (No 2). Implicit in the reasoning of Pain J contained at paragraph [109] is a consideration of unreasonable delay on the part of the defendant in that case, and not mere delay. At best, the case is neutral in the assistance it provides Riverina.

36 Neither the text nor the context of s 257F(2) of the CPA justifies the construction contended for by Riverina. An ordinary natural reading of the provision leads inexorably to the conclusion that the delay must be unreasonable, just as the conduct must be unreasonable, in order to enliven the Court's power to award costs. Were it otherwise, it may be expected that the legislature would have inserted a comma after the word "conduct". There can be no objective intention discerned that the Court should be permitted to award costs against a party for delay that was not of its own making or over which it had no control, the logical corollary of Riverina's submission. Not all delay has its genesis in the fault of a party. Rather, the provision is clearly directed towards disentitling conduct and disentitling delay by a party, or in other words, unreasonable conduct and disentitling delay.

27. The acts of the council relied upon by Benedict to meet the second limb of s 257F(3) of the CPA were those set out at length in Benedict (No 3). This comprised, according to Benedict, all of the conduct of the council up to 8 May 2015, including the two applications for leave to adduce further evidence (see the procedural history as set out Benedict (No 3) at [2] and [7]-[32]), and the events of 8 May 2015, and thereafter, resulting in the adjournment of the trial (see Benedict (No 3) at [33] – [48]).

28. The council submitted that its conduct prior to 8 May 2015 was irrelevant to the determination of this application because there was no causal nexus between that conduct and the incurring of the additional costs. In response, Benedict stated that this argument had the effect of impermissibly traversing the judgment of the Court in Benedict (No 3) and the findings made therein.

29. I do not agree with this latter contention. In Benedict (No 3) the Court did not turn its mind to the exercise of the discretion contained in s 257F and the findings necessary to enliven that power. Rather, the Court was concerned with whether or not any of the sanctions contained in s 257N of the CPA ought to be imposed, and in particular, whether the council should be permitted to rely upon the affidavit of Ms Whittingstall and the plethora of ‘search team’ evidence accompanying it, and if it should, whether an adjournment of the trial should ensue as a matter of fairness to Benedict. The findings made by the Court were conceived and directed to that purpose and to that purpose alone. To rely upon them for a different purpose would be imprudent, if not impermissible.

30. In Benedict (No 3) the Court’s discretionary exercise was concerned with the justice and fairness of allowing, or disallowing, the council to rely upon the additional evidence. The factors to be weighed in the balance in that matter were more complex and nuanced than those to be considered under to s 257F(2). In the present application, the Court’s discretion is contained in s 257F(1), not s 257F(2). Under the latter sub-section, all that the Court is required to be satisfied of is two-fold, namely, whether the conduct or delay against whom the order is sought was unreasonable, and whether this unreasonable conduct or delay gave rise to the additional costs.

31. Having said this, the non-contentious procedural history of the prosecutions leading up to the adjournment described in Benedict (No 3) can be relied upon in this application, albeit devoid of the colour and characterisation ascribed to them by the Court in that judgment, for the reasons given above.

32. The unreasonable conduct and delay relied upon by Benedict to found its claim for additional costs may be categorised four ways:

1. first, the conduct of the council prior to 8 May 2015 giving rise the two applications for leave to rely on additional evidence before Biscoe J (Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121) and Craig J (Sutherland Shire Council v Benedict Industries (No 2) [2015] NSWLEC 39);

2. second, the failure of the council in not scrutinising or testing the evidence of Ms Leisa Hasham prior to 7 May 2015, when it realised that she was an unreliable witness;

3. third, the filing and serving of the additional, and late, evidence of Ms Whittingstall and the ‘search team’ affidavits; and

4. fourth, the totality of the council’s conduct, that had resulted in a delay of over two years in the hearing of the matter.

33. In support of its contentions, Benedict relied upon an affidavit from its legal representative, Mr Luke Walker, affirmed 22 May 2015, and an email communication passing between two council officers on 4 September 2012, where it was noted that it was not enough to merely search the electronic records of the council for the development consents issued by the council, but that hard copies, including the council’s card system and records of minutes, should also be searched.

34. In addition to the affidavit of Ms Whittingstall, the council relied upon the affidavit of Mr Walker, the affidavit of Ms Hasham sworn 2 August 2013, the affidavits of Ms Roslyn McCulloch sworn on 26 May and 9 June respectively, and the cross-examination of Ms McCulloch on 9 June 2015 (T14 - 18.10), to refute the suggestion that its conduct could be impugned in the manner contemplated by s 257F(2).

35. During her cross-examination, Ms McCulloch conceded that the task of obtaining the evidence the subject of Ms Whittingstall’s affidavit, namely, the absence of any relevant consent (a fundamental element of all five charges), could have been commenced prior to September 2012 (T15.45 – 16.09):

Q. It's the position, isn't it, that the task of obtaining that evidence could have been undertaken prior to the commencement of the proceedings in 2012?

A. I’m not sure on the answer to that.

Q. Is there any reason that you would advance as to why the tasks that had been undertaken since 8 May by the deponents of these new affidavits could not have been undertaken before the proceedings were commenced in September 2012?

A. I guess there was nothing preventing those steps from being undertaken. It was really the question of the necessity to have them undertaken. I was--

HER HONOUR: Sorry, could you please keep your voice up.

WITNESS: I was - there was nothing preventing the steps from being undertaken.

36. Ms McCulloch also agreed that Ms Hasham’s evidence could have been tested at any time after she had sworn her affidavit in early August 2013 (T16.13-16.29):

Q. And there was nothing preventing you or other solicitors or counsel, whom you retained, testing the affidavit evidence in conference of Ms Hasham at any stage after 2 August 2013, was there?

A. That being the date that she swore her affidavit?

Q. She swore the affidavit, yes, correct.

A. Yes.

Q. When you say that, I probably put it in a double negative. I’m sorry about that.

A. There was nothing preventing us from conferencing with her after 2 August 2013.

Q. Did you yourself take the affidavit of Ms Hasham? I think the answer to that is probably no, but I think it was sworn in front of Adam Markham, solicitor.

A. It was sworn in front of Adam Markham but it was the process of at least one conference that I attended, and a number of telephone conversations.

Relevance of Events Prior to 8 May 2015

37. In my opinion, the conduct and any consequential delay in the discrete events prior to 8 May 2015 (as opposed to their overall cumulative effect, which is discussed further below) have no causal connection to the additional costs suffered by Benedict and cannot enliven the power of the Court under s 257F(1). They did not give rise to either the adjournment of the trial or any of the additional costs.

The Failure to Realise Earlier That Ms Hasham Was Not a Reliable Witness and the Necessity for Ms Whittingstall’s Evidence

38. It is not only convenient to analyse the second and third category of unreasonable conduct and delay together, this should be done as a matter of necessity. The categories are inextricably intertwined and to examine each set of circumstances divorced from the other would be artificial in the extreme and give rise to the potential for errors.

39. The basis for arguing that the council’s conduct, and any resultant delay, was unreasonable in respect of the discovery that Ms Hasham was an unreliable witness, rested on the candid admission by the council that it was not until she was being conferenced on 7 May 2015 in preparation for the forthcoming trial on 9 June 2015, that the problem was discovered; the email dated 4 September 2012 described above; and the fact that Ms Hasham’s searches had failed to uncover the 1967 consent, which was known by the council to exist at or about the time that she swore her affidavit.

40. It was this failing by the council, Benedict submitted, that gave rise to the need for it to find another witness who could depose to the fact that Benedict did not have consent to engage in the acts the subject of the five charges. Reliable evidence of which, Benedict contended, could and should have been given earlier.

41. Given the importance of this evidence, I agree with Benedict that the deficiencies with Ms Hasham’s evidence should have been uncovered much earlier than four or five weeks from the commencement of a four week hearing, in light of the fact that:

1. the prosecutions had commenced as early as in September 2012, when the summonses were filed;

2. at around this time (4 September 2012), the council had, by email, been put on notice by its legal representatives of the need to undertake the very searches which Ms Whittingstall later deemed necessary to perform, namely, a search of the hard copy records of the council, including its record of minutes thereby adding to the complexity of her affidavit, its delayed service, and the need for the ‘search team’ affidavits;

3. as Benedict correctly observed, Ms Hasham’s evidence was central to the prosecutions. It constituted an element of all five charges. Without it the charges would fail. It was therefore more than merely “technical”, as the council submitted;

4. the council ought to have known that Ms Hasham’s affidavit was defective because her searches did not reveal the existence of the 1967 consent, even though one of the files she searched was “HB975/WAL” (see paragraph 8 of her affidavit), a file subsequently properly searched by Ms Whittingstall alerting her to its existence (see paragraph 39 of Ms Whittingstall’s affidavit);

5. as Ms McCulloch’s evidence disclosed, there was nothing preventing the council from undertaking the searches performed by Ms Whittingstall and the search team earlier. Ms Whittingstall was employed by the council as at August 2013, that is to say, at the same time that Ms Hasham swore her affidavit;

6. the council had on two separate occasions previously been alerted to deficiencies in its evidence and had required leave of the Court to file additional evidence, delaying the finalisation of its evidence and preparation for trial (Benedict and Benedict (No 2)); and

7. Ms Whittingstall’s evidence (admittedly through no fault of the council) and the search team evidence was served late.

42. While ordinarily, to discover that a witness is unreliable four to five weeks from the commencement of a trial, thereby requiring the filing of further evidence would not, of itself, necessarily constitute unreasonable conduct for the purposes of s 257F(2) of the CPA, when regard is had to all the circumstances giving rise to the adjournment of this hearing, the inescapable conclusion, in my opinion, is that the council’s conduct has been unreasonable.

43. I accept that, upon discovering the need for the additional evidence the council did not sit idle or waste time in remedying the situation. But while its haste was commendable, this does not mean, as the council suggested, that overall their conduct ought not be characterised as unreasonable. Likewise, that the council did not have control over each and every event culminating in the need for the new evidence, or its late service, does not, in this instance, wholly exculpate it. While there is no property in a witness, and the evidence of Ms Hasham cannot be attributed to the council (at all times it remained her evidence), she was nevertheless giving evidence on the council’s behalf and it was incumbent upon the council to ascertain her reliability in a much more timely fashion.

44. The council relied on several authorities, the gravamen of which were that it was not an erroneous exercise of a court’s discretion to permit a prosecutor to reopen its case during the hearing to adduce evidence to prove a formal, rather than a substantive element, of an offence. I accept this to be the case. However, that is not the subject of the exercise of the discretion here. In the present case, the exercise of the discretion is predicated upon a finding by the Court that the prosecutor’s conduct has been unreasonable and has caused an accused to incur additional costs by reason of the adjournment of the hearing. As I have stated above, I am satisfied that the council has acted relevantly unreasonably.

The Totality of the Conduct by the Council

45. It would appear from the evidence that the council’s poor preparation – in other words, its conduct – has undoubtedly caused unreasonable delay in the finalisation of the proceedings. However, not all of the delay relied upon by Benedict was caused by the council, with both Benedict and the Court having contributed to the almost three years that have passed since the prosecutions were commenced. And moreover, as discussed above, not all of the unreasonable delay that the council was responsible for caused the additional costs incurred by Benedict upon the adjournment of the hearing.

46. Nevertheless the totality of the council’s conduct in finalising its evidence is relevant to the exercise of the discretion contained in s 257F(1) of the CPA (the preconditions to the exercise of power in s 257(2) having first been met). The conduct is, in my view, sufficiently wanting that it all but compels the Court to order the council to pay Benedict’s additional costs.

Conclusion and Orders

47. In my opinion, the council should be ordered to pay the additional costs incurred by Benedict upon the adjournment of the hearing. While the precise quantum of these costs are not presently known, ss 257(3) and 257G permit these costs either to be agreed between the parties or to be assessed at the conclusion of the trial.

48. The formal orders of the Court are therefore that:

1. pursuant to s 257F of the Criminal Procedure Act 1986, the council is to pay the additional costs incurred by Benedict;

2. in conformity with s 257F(3) of that Act, if no agreement can be reached by the parties as to the quantum of these additional costs, the additional costs are to be assessed in accordance with s 257G of the Act, and payable at the end of the proceedings; and

3. the exhibits are to be returned.

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Amendments

01 July 2015 - 22 and 23 June 2015 added (hearing dates).

12/50923, 13/50100 added (file numbers, in addition to 12/50921 already there).

Paragraph 25 changed to an indented paragraph (quote) as part of paragraph 24.

Decision last updated: 01 July 2015