District Court New South Wales Medium Neutral Citation: Chen on behalf of the Department of Regional NSW v Ardler; Chen on behalf of the Department of Regional NSW v Reid; Chen on behalf of the Department of Regional NSW v Thomas [2022] NSWDC 630 Hearing dates: 26 October 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: In each matter the appeal is upheld. I set aside the orders of the Local Court. I make no order as to costs. Catchwords: APPEALS – Costs - application of principle - statutory interpretation - unreasonably failed to investigate - relevant matter of which the prosecutor was aware that suggested that the accused person might not be guilty Evidence – Expert evidence - proof of expertise Fisheries Prosecutions - Identifying species of abalone - Aboriginal cultural fishing - successful defendant's costs - costs of appeal Legislation Cited: Crimes (Appeal & Review) Act 2001 Criminal Procedure Act 1986 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Evidence Act 1995. Fisheries Management Act 1994 Fisheries Management (General) Regulation 2010. Native Title Act 1993 (Cth) Prevention of Cruelty to Animals Act 1979 Racial Discrimination Act 1975 (Cth) Cases Cited: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122, Allerton v DPP (1991) 24 NSWLR 550 Andrews v Ardler & Brown [2013] NSWDC 94 Attorney-General of Queensland v Holland (1912) 15 CLR 46; [1912] HCA 26 Cliftleigh Haulage Pty. Ltd. v. Byron Shire Council [2007] NSWCCA 13 Cox v R (No 2) [2017] NSWCCA 129 Czako v R [2015] NSWCCA 202 Fosse v DPP [1999] NSWSC 367 Hannes v DPP (Cth) (No. 2) [2006] NSWCCA 373 HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 Honeysett v The Queen (2014) 253 CLR122; [2014] HCA 29 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 Mordaunt v DPP [2007] NSWCA 121 O'Brien v Hutchinson [2012] NSWSC 429 R v Hunt [1999] NSWCCA 375 Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292 Texts Cited: Expert evidence and criminal jury trials; I Freckleton, J Goodman-Delahunty, J Horan & B McKimmie, Oxford, University Press 2016 Mutton fish the surviving culture of Aboriginal people and abalone on the South Coast of NSW, B Cruise, L Stewart, S Norman, Aboriginal Studies Press, 2005 Category: Principal judgment Parties: Anthony Chen for Department of Regional NSW (the appellant) Ricky John Ardler (the 1st respondent) Simon Leslie Graham Reid (the 2nd respondent) Ewan Leslie Thomas (the 3rd respondent) Representation: Counsel: Mr I Wallach (for the respondents) Mr M McAuliffe for the Crown Solicitor (for the appellant) Solicitors: Appellant: Crown Solicitor NSW Respondents: Ricky John Ardler - Ridge Legal Simon Leslie Graham Reid – McAneny Lawyers Ewan Leslie Thomas – Legal Aid NSW File Number(s): Ardler - 2020/00237692 Reid - 2020/00237702 Thomas - 2020/00237720 Decision under appeal Court or tribunal: Nowra Jurisdiction: Local Court, Crime Date of Decision: 14 April 2022 Before: Ellis LCM JUDGMENT Introduction 1. An abalone is a single shelled gastropod marine mollusc. Black lipped abalone, haliotis rubra, is the species commonly found and gathered as a food in NSW. Abalone have been harvested by Aboriginal saltwater peoples for countless generations and they were, until colonisation, a valuable food resource. For Aboriginal people cultural fishing was, and remains, an integral part of their identity and connection to Country. 2. After colonisation Aboriginal people continued to harvest abalone as a food resource for their community, and for barter and trade purposes, in order to provide them with some modest income. Few, if any, Aboriginal people were able to take up licences when the abalone fishery was regulated: Mutton fish the surviving culture of Aboriginal people and abalone on the South Coast of NSW, B Cruise, L Stewart, S Norman, Aboriginal Studies Press, 2005. 3. The Department of Regional NSW has responsibility for fisheries management, including ensuring the environmental protection of abalone and a sustainable abalone fishery. The Fisheries Management Act 1994 (FM Act) and associated and subordinate Regulations govern the management of fishery resources. It sets out provisions related to bag and possession limits for fishing, recreational fishing requirements, fishing determinations and commercial quotas and licensing arrangements. "The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations. (2) In particular, the objects of this Act include— (a) to conserve fish stocks and key fish habitats, and (b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and (c) to promote ecologically sustainable development, including the conservation of biological diversity, and, consistently with those objects— (d) to promote viable commercial fishing and aquaculture industries, and (e) to promote quality recreational fishing opportunities, and (f) to appropriately share fisheries resources between the users of those resources, and (g) to provide social and economic benefits for the wider community of New South Wales, and (h) to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing: s 3(1) In this Act— "Aboriginal cultural fishing" means fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose: s 4 FM Act." 1. A "cultural fishing take" is for the benefit of the community rather than the individual. 2. On 17 August 2018, Fisheries officers saw three people diving at Shell Point, Kiola on the South Coast of NSW. They formed a suspicion that the three were unlawfully harvesting a large quantity of abalone. They saw the people leave the sea carrying bags, which contained objects that looked like abalone in some quantity. The three then left in a car. 3. At the time the legal limit for the recreational take or bag limit of black lipped abalone was two (2) per person per day for recreational fishers and under the interim access arrangement for Aboriginal cultural fishing, ten (10) per person per day. 4. Having formed a suspicion that more than the allowed quantity had been taken by each of the men, steps were taken to intercept and search the men's vehicle. NSW police were requested to assist. At a point north of where the men were first seen, police pulled over and stopped their vehicle. Fisheries officers then approached the men and spoke to them. Each was still wearing some of their diving gear. It soon became obvious that each of the men were Aboriginal Australians from a local community. 5. The three men were the present respondents, Mr Ardler, Mr Reid and Mr Thomas. It is accepted that each man is a participant in the South Coast land claim, presently before the Federal Court. At least one of the men, Mr Ardler, was known to the Fisheries Officers. They told the officers they had gathered the abalone "for a feed." Mention was made of a funeral. 6. The Fisheries Officers searched the car. In the boot of the car, they found a quantity of what they identified as black lipped abalone, in quantities above the per person for both recreational or cultural fishing limits. After discussion each of the men told the Officers the quantity of abalone that they had taken: Mr Ardler - 54, Mr Reid - 66 and Mr Thomas - 26 abalone. 7. Fisheries Officers allowed each of them to take 10 abalone; a quantity they believed to be consistent with their cultural quota: Cultural Fishing Interim Access policy - Appellant's bundle tab 12. The remaining abalone were seized, as was some of the men's diving equipment. The men were told that they may each be prosecuted for taking excess quantity of a prohibited fish. 8. No action was taken on a possible prosecution until only days before the two-year statutory limitation for prosecutions was due to expire. Each of the respondents was then served with a Court Attendance Notice alleging two offences for each offender: Possess is more than the possession limit of fish (black lipped abalone haliotis rubra) in circumstances of aggravation - first offence: s18(2A) FM Act. The circumstance of aggravation was that black lipped abalone haliotis rubra was a "priority species:" s18 A FM Act. Shuck abalone adjacent to NSW waters not being a commercial fisher: cl 94(1) Fisheries Management (General) Regulation 2010. 1. Each defendant, as is their right, said they were not guilty. The hearing came before Magistrate Ellis, at Milton Local Court, on 11 and 12 April 2022. It was listed for three days. Each accused was represented by counsel. 2. Prior to the Local Court hearing the solicitor for Mr Ardler notified the State Crown Solicitor, appearing for the appellant, that if his Native Title claim was successful a cost orders would be sought: Exhibit M Appellant's Tender bundle. That letter indicated that evidence would be called to explain the law and custom with respect to the size, and obligations to share, abalone within the local Aboriginal community, relevant to the numbers of abalone caught. It stated that that reliance would be placed on s287 FM Act and s 9 Racial Discrimination Act 1975 (Cth). No mention was made of any contest about the species of abalone. I note that where a case fails at a prima facie level, if the prosecution had been put on notice of the particular likely failure that might satisfy the "exceptional circumstance" test in s214(1)(d) Criminal Procedure Act 1986: O'Brien v Hutchinson [2012] NSWSC 429 at [51]. 3. The Local Court hearing proceeded on the basis that the prosecution had an obligation to prove each element of a count beyond reasonable doubt. But it was clear from the outset that several critical issues needed to be resolved before convictions could be recorded. Those issues included: 1. A challenge to what the defence asserted was an illegal stop by police and a subsequent unlawful search by Fisheries Officers; requiring the exclusion of product of that search pursuant to s 138 Evidence Act 1995. 2. The exclusion of evidence because of breaches of the Racial Discrimination Act, requiring the exclusion of the evidence pursuant to s 138 Evidence Act 1995. 3. A claim for native title, bringing into play s 212 Native Title Act 1993 (Cth) and s 287 FM Act. 4. The failure of Fisheries Officers to apply Departmental Native Title protocols or demonstrate any Native Title training. 1. During the hearing issue was taken by Mr Wallach, counsel for Mr Ardler, about the capacity of the Fisheries Officers called to give "expert" opinion about an essential element of each charge - whether the fish seized were in fact black lip abalone haliotis rubra. That challenge was developed by each party such that Her Honour "became creepingly aware it was a live issue:" TT p 79 12/4/2021. 2. Magistrate Ellis, after hearing evidence from the Fisheries Officers, concluded that expert evidence was required to prove the species of fish were, as alleged black lipped abalone – haliotis rubra, and that this element of each count could not be proved beyond reasonable doubt. Given that finding, the prosecution then conceded that if that as an essential element of each charge could not be proved verdicts of not guilty had to be entered for each accused on each charge. 3. The successful defendants then made an application for costs. 4. Her Honour heard the costs application on 13 April 2022. She gave a short extempore judgement on 14 April 2022. She awarded costs to each successful defendant/respondent in the sum of $56,900. She also awarded costs of $3,300 to pay for an expert that the defence had proposed to call. 5. The appellants did not appeal her Honour's determinations on the question of guilt. But within 28 days, as is their right, the appellant on behalf of the Department of Regional NSW lodged an appeal against the costs orders: s 23 (c) Crimes (Appeal & Review) Act 2001 (CAR Act). 6. The appellant sought following orders: 1. The costs order be set aside. 2. Each defendant be ordered to repay the relevant amounts to the prosecutor. 3. The defendants pay the prosecutors costs of the appeal: s28(3) CAR Act 1. Order 2 was not pursued, as the costs had not yet been paid, and because there was no apparent power in this court to grant such an order. 2. The hearing of the appeal was originally listed in Nowra but could not be started during several sittings of that Court. It was sent to Wollongong, where I heard the matter on 26 October 2022. As the matter went late into the day, I reserved my decision. The jurisdiction of the District Court 1. The appeal is brought by Mr Anthony Chen on behalf of the Department of Regional NSW. A prosecutor may appeal to the District Court against any order for costs made by a Magistrate against the prosecutor in respect of summary proceedings taken by the prosecutor: s23 (2)(b) CAR Act. 2. The District Court may determine an appeal against an order referred to in section 23 (2): 1. by setting aside the order and making such other order as it thinks just, or 2. by dismissing the appeal: s 27 CAR Act. 1. I proceeded on the record in the court below. No leave was sought to allow fresh evidence: s 26(1) CAR Act. 2. The appellant provided and tendered without objection a bundle of documents headed Costs Appeal Cover Sheet, setting out all exhibits, transcripts, judgments and written submissions from the Local Court. 3. An appeal to the District Court under s 23 CAR Act requires demonstration of a factual, legal or discretionary error in order to succeed: McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298. I must be alive to the possibility that misapprehensions and errors of judgment can occur in a Magistrate's evaluation of evidence. I am obliged to give the judgment which in my opinion ought to have been given in the first instance. I must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. 4. What is required to demonstrate error will depend upon whether the error is to be found in the fact-finding exercise, the identification of the law, the application of the law, or in exercising a discretionary power. If so, the court is bound to act and to set aside a verdict based upon that evidence. The fact the appellant must demonstrate error says nothing about the onus of proof, but the decision to make a cost order is made on balance of probabilities. 5. The parties accepted that my consideration of s23(2) CAR Act should follow the helpful judgement of Andrews v Ardler & Brown [2013] NSWDC 94. There, Judge Murrell SC DCJ, as she then was, made four important points about costs appeals: 1. They must be confined to an appeal in relation to an error of fact or law. 2. An appeal by a prosecutor in relation to an adverse costs order is an appeal in relation to a matter of less consequences than, for example an appeal against conviction or sentence of imprisonment where the liberty of the subject is at stake. 3. A defendant has only a limited appeal in relation to a cost order. It is most unlikely that the legislature intended the prosecutor would have a wider entitlement to appeal than a defendant. 4. A decision in relation to costs is a discretionary decision. Grounds of Appeal 1. The appellant asserts that her Honour erred in the application of s 214 (1)(c) Criminal Procedure Act 1986 by: 1. erroneously determining that there had been an unreasonable failure to investigate a relevant matter relating to the identification of the species of fish allegedly possessed by the defendants; 2. failing to address the requirement in s 214(1)(c) that the asserted failure to investigate relate to a matter which suggested that the accused person might not be guilty or that, for any other reason the proceeding should not have been brought; 3. further, or in the alternative to (b), above erroneously determining that s 214(1)(c) had been satisfied in the absence of evidence that the asserted failure to investigate related to a matter that suggested that the accused person might not be guilty. Relevant statutes Criminal Procedure Act 1987 Section 213 Criminal Procedure Act 1987 When professional costs may be awarded to accused persons: (1) A court may at the end of summary proceedings 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 the amount that the Magistrate considers to be just and reasonable… (5) The order must specify the amount of professional costs payable. Section 214 Limit on award of professional costs to accused person against prosecutor acting in public capacity: (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any 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. Fisheries Management Act 5 Definition of "fish" (1) In this Act, "fish" means marine, estuarine or freshwater fish or other aquatic animal life at any stage of their life history (whether alive or dead). (2) In this Act, "fish" includes— (a) oysters and other aquatic molluscs, … 18 Offence of contravening possession limit (2A) A person who has in the person's possession, in circumstances of aggravation, more than the possession limit of any fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken. Maximum penalty— (a) in the case of an individual— (i) 400 penalty units or imprisonment for 12 months (or both) for a first offence, or (ii) 800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence… (2B) For the purposes of subsection (2A), a person has possession of fish in "circumstances of aggravation" if— (a) the fish in the person's possession are a priority species of fish, and (b) the quantity of fish in the person's possession is a commercial quantity of that species of fish 18A Additional monetary penalty for bag limit offences involving priority species A court that finds a person guilty of an offence against section 17 or 18 in respect of any species of fish that is a priority species of fish in relation to the offence concerned may impose an additional penalty for the offence of up to 10 times the market value of the fish the subject of the offence. Schedule 1B "Division 3 Invertebrates" notes that the species of fish haliotis rubra, common name Blacklip Abalone, Abalone is a priority species. And that the commercial quantity is 10 abalone. The Fisheries Management (General) Regulation, Division 4 ' Part 2 Invertebrates" provides that invertebrates with the Common name "Blacklip Abalone, Abalone" Species "Haliotis rubra" has a Daily limit of 2 and a Possession limit of2 . 21 Defences (1) It is a defence to a prosecution for an offence under this Division if the person charged satisfies the court that— (a) .. (b) … or (c) the fish were taken or in possession under the authority conferred by any other permit under this Act, or (d) the person has any other defence that is prescribed by the regulations. Regulation 3 Interpretation (1) In this Regulation: "abalone" means fish of the species Haliotis rubra Section 287 Native title rights and interests This Act does not affect the operation of the Native Title Act 1993 of the Commonwealth or the Native Title (New South Wales) Act 1994 in respect of the recognition of native title rights and interests within the meaning of the Commonwealth Act or in any other respect. Critical Evidence in the Local Court 1. Mr Wallach, for Mr Ardler, cross-examined Fisheries Officer Donaldson on 12/4/22 at transcript (TT) pages p 21 & 22, about why he believed the abalone seized were a particular species. He asked him to explain the basis for his conclusion. Mr Donaldson replied: "On the basis of the… the shape, the size and the area… I know haliotis rubra are the only species apart from the very rare greenlip abalone that you may find once in a blue moon in that location, it is the only it's the only species of abalone that you are likely to get in that location. Q: Well that's only on the basis of your department of training isn't it? You could say that? A: It's on the basis of my departmental training and on that basis of my understanding and knowledge of that particular area as well. Q: The only way that you can offer your view and it's a view it's an opinion only isn't it? A: Yes. 1. Officer Donaldson confirmed he had received Departmental training and that he had no formal qualifications other than his Fisheries training. 2. Mr Wallach sought to make the point that Officer Donaldson had no way, other than being taught, of knowing the accuracy of what he was taught or how accurate the training was. Officer Donaldson replied: "Well I think, that that over the years the eight years prior to this, and the hundreds maybe the 1000 different times I've encountered abalone with other fisheries officers and you know we all formed the same belief about what an abalone is looks like, the size shape, smell, you know, I think I think through my experience and my training I feel confident that I could recognise and identify haliotis rubra. Q: Well, you feel confident? A: Yes Q: But you can't say, can you? Because whether or not these in fact are abalone can only be confirmed by someone who's got the formal training and the characteristics of abalone? That's right isn't it? A: Well, I think they have to be sent away for scientific testing to get an unequivocal answer." 1. The officer repeated his belief that he knew that the abalone were haliotis rubra. Q: The only way to actually tell whether they are in haliotis rubra is by having them sent away for scientific analysis that's correct isn't it? A: Correct. Q: Isn't it? A: Yeah, I accept that. 1. Officer McTavish told the court that he had been a Fisheries Officer for 11 years and had received training in relation to the identification of different fish species. He received informal field training and had to sit exams, including fish identification. He was shown many abalone and shown how to measure them correctly. He did not receive training in relation to the characteristics of different species of abalone, but he was given training in relation to the prevalence of abalone in different regions in NSW and the prevalence of greenlip abalone and blacklip abalone. He said, "we don't really have green abalone in NSW, it's all mostly blacklip abalone:" TT 12/4/22 page 45 in 47. He said he had received training in relation to how to identify blacklip abalone and he had identified black lipped abalone on thousands of occasions: TT 45 to 47. The Magistrate's decision 1. Her Honour delivered an extempore decision on 14 April 2022. She relied in part on her earlier decision rejecting the tender of the Fisheries Officer's expert opinion and acquitting each respondent. In that earlier decision she held that the Fisheries Officers were not accepted as expert witnesses and were not qualified to give expert opinion that the seized property was haliotis rubra, an essential ingredient of each count. As that the witnesses had not demonstrated they had the specialised knowledge required to give that opinion applying s79 Evidence Act. She referred to Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29; Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, HG v The Queen (1999) 197 CLR 414; [1999] HCA 2. 2. She noted that her decision was not based on the general practise for Fisheries prosecutions but on the evidence presented in this case, and no other; and her determination to exclude the evidence of Fisheries Officers in this case and no other. 3. She confined her reasoning to the issue upon which the prosecution failed, no other. Accordingly, she did not address the Native Title or illegal stop and seizure points or that Fisheries Officer, knowing the men were Aboriginal, had not acted on their published working instructions for such scenarios. She did not do so because these issues had not been determined. She made no finding about the suggestion the Fisheries Officers had not received specific Native Title training. 4. She noted the text of both s 213 and s214 Criminal Procedure Act. 5. She referred to the prosecutor's submission that their experience of Fisheries prosecutions was preceded by reference to evidence of Fisheries Officers with comparable training or experience as to the identification of fish, to those called. She made the point that every matter is to be "determined on its facts and not as a class action style of advocacy" and she had to act on what was presented to her: at [3] & [4] 6. She noted she was not basing her decision on issues that had not been determined. She confined herself to evidence that she was able to review in full and make a determination about: at [4]. Consistent with that ruling she specifically noted she was not making a determination on Mr Arder's submission that s 214(d) "exceptional circumstances" applied because of the respondents' status as Native Title holders: at [40]. Similarly, she did not consider, as relevant, Mr Reid's submissions on the unlawfulness of the stop and search or the failure to act on working instructions for dealing with Native Title holders. 7. In referring to Mr Ardler's submission she did note, "… there is, particularly under subs (c) of 214, that there is no genetic testing or expert evidence adduced": at [4]. And to those for Mr Reid : "it is further curious that there was a complete failure to investigate such a crucial element of scientific analysis when the court was notified that the subject shellfish were still in existence to be analysed something that did not form part of the brief of evidence." 8. She noted that the submission that the prosecution had failed to obtain evidence going to an essential element of the offence, providing scientific or genetic confirmation of the shellfish, being the priority species haliotis rubra. 9. She said, "There appears to be lack of evidentiary proof - my word - not the submissions - required as to the identity of the shellfish as to the specific priority species to support the proceedings being brought, and the failure to obtain expert evidence and/or lay evidence on whether the fishing fell within s287:" at [5]. 1. She noted Mr Thomas' submissions were initially relying on s214(a) and (b) but at the hearing relied primarily on subsection (c): at [5]. She concluded that she could not determine any issues based upon the Racial Discrimination Act or lack of compliance with it. 2. She noted that, "The prosecutor relied on the statement by fisheries officers to identify and established the shellfish seized being haliotis rubra and that that being a specific genus may be differentiated from other such as the commonly known greenlip abalone. I think that specifically on the basis that that was part of my reasoning as to why I could not accept the evidence of the fisheries officers in relation to various elements that came under the important differentiation of priority fish." at [5]. 1. She noted the prosecution submission, including that the defendants were asked to identify which of the abalone belong to them. She made it clear that she had rejected evidence upon which they relied, and which could not then be accepted by her in relation to the costs argument: at [6]. 2. She confirmed that, after submissions from the parties, she had held that the Fisheries Officers could not give either lay or opinion evidence in relation to the species of fish found in the bags under sections 78 or 79 Evidence Act. She noted her determination was on the record: at [6]. And, that there was no chain of evidence between what was seized and the available shellfish which had not yet been destroyed, that the shellfish were not given exhibit numbers, and the brief did not mention that the shellfish had been kept or, as her Honour said, "preserved for analysis:" at [5] 3. She found that when proceedings commenced on 1 October 2020 and were before the Local Court on 13 April 2022, "the prosecution had failed to obtain evidence going to an essential element of the offence, namely genetic confirmation of the shellfish being a priority species: at [5]. 4. She noted Mr Thomas's submissions, relied primarily on subsection (c) "a failure to properly investigate whether the shellfish seized and kept in storage were in fact haliotis rubra by obtaining relevant expert evidence to establish that fact. Mr Thomas also relied upon a statement by Fisheries Officers to identify and established the shellfish seized being haliotis rubra and that that being a specific genus maybe differentiated from other such as the commonly known greenlip abalone. I refer to that specifically on the basis that that was part of my reasoning as to why I could not accept the evidence of the Fisheries officers in relation to various elements that came under the important differentiation of priority fish: at [6]. 1. Her Honour criticised the prosecution submissions for raising matters that were not part of her determination as she had rejected them because of application of sections 78 and 79 Evidence Act. 2. She accepted the prosecution definition of "unreasonable" as meaning not based on or in accordance with reason or sound judgement and "improper" to mean abnormal or irregular. 3. She appeared to accept that s 214 (a), (b) or (d) could not be made out by the respondents and focused her reasoning on s214(c). 4. After setting out that provision she noted that s 214(c) "is focused on unreasonable failure to investigate exculpatory matters:" at [6]. 5. She gave the word 'unreasonable" its ordinary meaning. And, importantly she reminded herself the onus lay on the applicant for costs to show a failure to investigate was unreasonable and that it would have suggested that the defendant might not be guilty. 6. She concluded: "I think it is fair to summarise that the prosecution comes down on the basis that there should be no costs order made by the court, however, on the basis that I found that there was an inability of the court to allow either of the Fisheries Officers to be considered expert was made on the basis that the evidence before the court was fundamentally flawed. That is, on the basis that Mr Donaldson himself stated that there should have been scientific evaluation for the type of shellfish to be properly identified. I noted also that the legislation placed an emphasis on the greater penalties of the fish where a priority fish, and this heightened need to show the witness had expertise in identifying not only generic abalone but black lipped abalone, as was specified in the appropriate schedule. Further, that neither of the Fisheries Officers had provided their curriculum vitae in the brief nor had they confirmed that they were bound by the expert witness code of conduct. 'Essentially, I found that there was no specialised knowledge that had been identified with appropriate particularity to be able to identify either of the fisheries officers as experts. This in my opinion is evidence that must have been picked up by the prosecutor. It was not. 'I am persuaded therefore that is appropriate to make it costs order and specifically, I find that each of the defendants proved on the balance of probabilities that s 214(c) has been made out. I will therefore make a costs order:" at [7]. 1. In summary, her Honour found that, applying her earlier ruling that picked up the concession by Fisheries Officer Donaldson, that there should have been scientific evaluation of the type of shellfish, particularly as there was a need to prove what was seized was a priority species. This meant an expert with specialised knowledge should have been called to give evidence to establish the fish seized were in fact black lipped abalone. As the prosecution had not picked up this need or called this evidence s 214(c) had been satisfied and costs should be awarded. Submissions 1. Both the appellant and the respondents, all now represented by Mr Wallach, provided comprehensive written submissions to which they spoke. 2. Mr McAuliffe, for the respondent, made this simple point there was no evidence before the Local Court to show there was an unreasonable failure to investigate. I was asked to consider the evidence of the Fisheries Officers, noted above, and asked to conclude that there was no concession of a failure to investigate. 3. In this matter, it is submitted, there was an investigation as to the species of abalone. The prosecution failed because the purported expertise of the investigators was not accepted by her Honour. It was put that, with respect, her Honour and the respondents had confused or conflated "investigation" with "admissibility." 4. Mr McAuliffe noted that apart from questions asked of the Officers the respondent had failed to demonstrate what evidence further investigation or proper investigation could have provided of which it was aware or ought reasonably to have been aware; which "suggested … that the accused person might not be guilty." He said, the respondents in their submissions have confused the terms failure to investigate with failure to disclose. 5. It was submitted that the principles explained by the Court of Criminal Appeal in Cliftleigh Haulage Pty. Ltd. v. Byron Shire Council [2007] NSWCCA 13, at [20], bound me and that case involved a more stark failure to prove what was required by way of expert opinion than the present one. In Cliftleigh a costs order had been set aside. 6. In response, Mr Wallach, made the point that no evidence had been produced in the Local Court to support a critical element of each charge; which of itself demonstrated a failure to investigate. It was unreasonable, he said for, the appellant prosecutor, to assume that the Officer's expertise was acceptable and that the officers would be to explain their reasoning process: it was unreasonable to presume assertions about the species would be accepted, something Makita at [85] made clear was not permissible. 7. He said the prosecutor in the Court below had simply not considered whether a proper investigation might lead to the innocence of the respondents being demonstrated: that specific material and opinion was required to prove an element and if it had had been provided, it might have revealed the respondents could not be convicted. Such evidence and opinion should have been included in the brief that was served on the respondents. He submitted that the prosecution should not have been brought because the appellant prosecutor could not prove an essential element of any of the offences. Consideration 1. Despite any opinion I may hold to the contrary, see below at [95] to [112], I have to determine this costs application based on the findings made by her Honour and most importantly the dismissal of the prosecution by the Local Court; a judgment that was not subject to appeal. 2. However, the order for the cost payment is a different step from the order dismissing the matter. There is no requirement that there be any connection between the basis on which the accused person was acquitted and the facts and circumstances about which the court must be satisfied under s 214(1) before ordering costs: R v Hunt [1999] NSWCCA 375. 3. I have to ask: what matters was Her Honour required to give a proper, genuine and realistic consideration to in order to properly exercise her jurisdiction? I then ask the same question of myself: To what matters am I required to give a proper, genuine and realistic consideration to in order to properly exercise my jurisdiction on appeal? 4. The onus of satisfying the court of an entitlement to costs is on the defendant to the prosecution: Fosse v DPP [1999] NSWSC 367. That onus extends to satisfying the Court of the component parts of the section upon which a discretionary determination is based. 5. The court's discretion is exercisable only within the limits provided by the relevant statutory provision. There is no need to impose some gloss upon the words of the section: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122, Basten JA at [3]. 6. Here the focus of the appeal was on the correct interpretation and application of s 214(c) Criminal Procedure Act. 7. Each case will turn on its own facts: Cox v R (No 2) [2017] NSWCCA 129. The words "ought reasonably to have been aware" mean some circumstances must be hypothesised. There is thus an element of "retrospective wisdom" required: Allerton v DPP (1991) 24 NSWLR 550. As with other costs provisions the section is an attempt to steer a "middle course" between two extremes: Allerton, at [161]-[162]. One extreme is the Common Law and English position where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46; [1912] HCA 26 at 49. The other extreme is where costs follow the event as a matter of course: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59. 8. Ultimately, it is a matter of assessing objectively whether the failure to or deficiencies in the investigation of which the prosecutor was aware or ought reasonably to have been aware suggested either the accused were not guilty or that the prosecution should not have been brought: Mordaunt v DPP [2007] NSWCA 121. 9. Section 241(1)(c) is concerned with the reasonableness of an investigation with an emphasis on the discovery of exculpatory matters, as the Court of Criminal Appeal made clear in Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292 at [57]. 10. The respondents had the onus of establishing that they were entitled to a costs order. This required that they establish: 1. that the prosecutor unreasonably failed to investigate or to investigate properly; 2. any relevant matter of which it was aware or ought reasonably to have been aware; 3. which suggested that; 1. the accused person might not be guilty, or 2. for any other reason the proceedings should not have been brought. Determination 1. A person seeking costs must identify a matter that the prosecution was or ought to have been aware of and that suggested that the respondent/defendant might not be guilty or that the proceedings should not have been brought: Cliftleigh, my emphasis. 2. The matters that led to the dismissal of the prosecutions arose during the hearing. Nothing was raised until then that suggested a reasonable investigation on the issue of species of abalone was required or might support a defence for the respondents/defendants. The issue of species identification only became critical during the hearing. Nothing provided at the initial hearing, or on the costs' application suggests that a reasonable investigation on the critical issue of species of abalone might support a defence for the respondents/defendants. 3. Officer Donaldson's apparent concession that the only way to actually tell whether abalone are haliotis rubra is by having them sent away for scientific analysis carries with it no suggestion that some other species might have been identified. Such a suggestion flies in the face of all he and Officer McTavish said in their evidence. 4. A mere assertion by the respondents that if another expert was called, or "scientific analysis" carried out, they may have said that the abalone seized were not black lipped abalone haliotis rubra, does not, as a matter of law, necessarily require a conclusion that it was unreasonable for the respondent not to investigate further, or that the respondent/defendant might not be guilty, or that the proceedings should not have been brought. A mere reference to some unspecified scientific or genetic analysis of the species of shellfish seized could not meet the onus placed on the respondent. 5. I accept the appellant's submission that her Honour identified the prosecution's failure to investigate as "an absence of specialised knowledge that had been identified with appropriate particularity to be able to identify either of the Fisheries officers as experts" at judgment [7]. While this finding is consistent with her earlier judgement concerning the Officer's expertise and their failure to establish it; "absence of specialised knowledge" is quite a separate issue from a failure to investigate. 6. The evidence given in the Local Court from the Fisheries Officers was rejected because they did not have, or had not properly set our or particularised, the necessary expertise. In her costs order her Honour appears to have confused the sufficiency of the investigation with the absence of evidence; evidence that was only absent as a consequence of her Honour's evidentiary ruling. 7. Here my consideration of the nature and degree of the deficiencies in the prosecution case reveals that at worst they ought reasonably have been aware that their witnesses might have their expertise challenged and thus been better prepared to present evidence of their training and experience in fish identification and the basis for such identification. 8. In Southon, Justice Beazley, as she then was, held that the costs order will not be made merely because one party's expert evidence was sufficient to undermine the another's case: at [74]. Her Honour noted that there is not an entitlement to costs; "…merely because one expert trumps another, or where one aspect of the evidence is found to be unmaintainable either because of contrary evidence given by the defence, or because the prosecution evidence has been effectively undermined in cross-examination:" at [74] 1. With great respect, nowhere in Magistrate Ellis' short judgement does she engage with the critical requirements that any asserted failure to investigate suggest that: 1. the defendants might not be guilty, or 2. that the proceedings should not have been brought. 1. Whatever the failings in the prosecution case nothing relating to the evidence led, and nothing put by the respondents, suggested that the respondents might not be guilty or that this was not a valid prosecution relating to the priority species haliotis rubra. To the contrary, all of the evidence given in the Local Court indicated that the fish seized were in fact the priority species haliotis rubra. 2. The mere suggestion that there was another species of abalone or the possibly of genetic testing or better testing or some undefined "scientific" analysis could have been undertaken does not demonstrate that the Officer's opinions as to the species (even though found not to be based on specialised knowledge) was incorrect. All that suggestion led to, was the possibility that better testing and better proof, supported by expert certification, would have enabled the prosecution case to be proved to her Honour's satisfaction. Further, this reasoning could not support a proposition that "any other reason the prosecution should not have been brought." 3. Her Honour, with respect, failed to address the specific requirements of s214(1)(c) that the "relevant matter" the subject of the "unreasonable failure to investigate" suggested either that the accused person might not be guilty or for any other reason the prosecution should not have been brought; as she did not as she was required to do consider whether any further evidence would have been exculpatory. 4. There was no evidence before the Local Court at the initial hearing, or on the costs application, to raise any possibility that the abalone seized were not the priority species haliotis rubra- black lipped abalone. Nothing in the prosecution evidence before the Local Court suggested the defendants might not be guilty – on this point - and no evidence was put before that Court to found such a suggestion. 5. To the contrary, while the opinions of the Officers were not accepted, and they may not have properly proved or set out their scientific expertise, there was no evidence to suppose or suggest that further evidence about the seized abalone could have suggested that the respondents were not guilty. 6. In her costs judgment her Honour noted the evidence before the court was 'fundamentally flawed' and reiterated her earlier finding facts that the witnesses called did not have specialised knowledge and they prosecutor had not identified with appropriate particularity to be able to identify either of the fisheries officers as experts. She concluded; "This in my opinion is evidence that must have been picked up by the prosecutor." This reasoning could not support a conclusion that "for any other reason the prosecution should not have been brought." As Justice Beazley made clear Southon, a costs order will not be made merely because a party successfully undermined the prosecutor's case. 7. Her Honour's errors of law require that the appeal be upheld, and the orders of the Local Court be set aside. Costs of the Appeal 1. The appellant has succeeded. An application for costs of the appeal was made. 2. If the appellant had succeeded in the Local Court a discretionary costs order could have been made. That order would not have been subject to the restrictions that apply to successful defendants. The same rules apply here. They are, however, discretionary orders. 3. Here it seems incongruous that a successful defendant in the Local Court should be out of pocket simply because of my determination that there was an error in the Court below on a matter of statutory interpretation and the application of those provisions to the facts. 4. In my opinion the respondents should not be further out of pocket by paying the appellant prosecutor's costs. The application for costs of the appeal is refused. Admissibility of opinion evidence about abalone species - What expertise was required? 1. There is often a significant disparity between the level of expertise necessary to offer an expert opinion in court. Everything depends on the issue in dispute. Some matters outside the knowledge of ordinary people may be relatively simple to comprehend; others are of extraordinary complexity. Any expert opinion must be subject to scrutiny for compliance with s 79 Evidence Act; but the substance and level of that scrutiny is likely to depend on the point or fact, about which the opinion is being offered, the issue in dispute, the manner in which the particular case is presented, and the circumstances involved. 2. Expert evidence can play a central role in a criminal trial by helping the tribunal of fact understand complex and/or unfamiliar information. Such opinion evidence may be essential to determine the guilt or innocence of a defendant. If evidence is misunderstood and or misconstrued it has the potential to lead to miscarriages of justice. 3. Ideally, expert evidence should help resolve issues of fact. Expert evidence has unique characteristics that distinguish it from other types of evidence. Its characteristics can pose unique challenges, as by its very nature expert evidence deals with matters that are the subject of specialised knowledge that is unfamiliar to ordinary people and judges and outside common knowledge: Expert evidence and criminal jury trials; I Freckleton, J Goodman-Delahunty, J Horan & B McKimmie, Oxford, University Press, 2016. 4. Expert opinion evidence is generally called to explain complex matters outside common knowledge. Accordingly, sometime no great expertise is required and the foundation for an opinion can be readily determined, as little training experience or deep knowledge is required to gain the necessary expertise. I note that in the Local Court here no application was made to rely on s144 Evidence Act. 5. Error arises at the margins as ss 78 & 79 Evidence Act cannot not cover every eventuality. In Honeysett v The Queen, the High Court rejected the purported expert's evidence as the opinion expressed was not based on a Professor's undoubted experience as an anatomist but a subjective impression of what he saw in the CCTV images. It gave the unwarranted appearance of science and was not based wholly or substantially on his specialised knowledge within s 79(1). 6. Identification of fish and shellfish is a form of specialised knowledge, but it requires no great or level of academic expertise to tell one species of abalone apart from another. While, of course, a Professor of Marine Biology may have that expertise, so too may any person who is trained as a Fisheries Officer. So too should anyone who holds a NSW Fishing licence and gathers shellfish. 7. Species identification is commonly based on training and experience. No evidence was produced before her Honour or me to indicate that there was a specific genetic test that distinguished species of abalone, nor that one was necessary. Although I believe genetic testing of species is now common this century, it was not common in 1994 when the FM Act was introduced. Nor was it ever explained what form of "scientific analysis" would be required. 8. For hundreds of years scientists have used what is known as morphology and the Linneaun system to distinguish one species from another. Sometimes there have been bitter debates about such classifications and changes made, but only in last decades have genetic testing come into use in species identification. 9. To have sufficient study, training and expertise in fish identification an "expert: need not even know what morphology is. Morphology is a branch of life science (biology) dealing with the study of gross structure of an organism to be able to look at the gross structure of an organism and classify it accordingly into genus and species. 10. A number of criminal provisions, including the FM Act, distinguish offences on the basis of the species of animal involved; for example, the Crimes Act 1900 has offences relating to dogs and "cattle" and until recently pigeons. And the Prevention of Cruelty to Animals Act 1979, distinguishes species as well. It is rare indeed for there to be any dispute or any need for expert evidence to prove a species. No analogy could be drawn with the need to distinguish scheduled drugs in the Drug Misuse and Trafficking Act 1985 where commonly what is seized is powder or liquid otherwise indistinguishable without chemical analysis. The s 4 Crimes Act definition "cattle" demonstrates in particular how common knowledge is of more relevance than "scientific analysis." "Cattle" includes any horse, mare, gelding, colt, foal, filly, ass, mule, bull, cow, ox, steer, heifer, calf, ram, ewe, sheep, lamb, pig, goat, deer, alpaca, llama, vicuna, camel, or dromedary, and every hybrid or cross thereof. 1. One way of preventing error is, as Magistrate Ellis suggested in her evidentiary ruling, that there be proper compliance with the Expert Witness Code of Conduct. However, with respect, absence of such notice is not invariably fatal to a case. 2. My education has given me what I regard as common knowledge about basic biology and how genus and species are classified. But I am prepared to accept that not everyone has the same level of education or interest as I do. And, that an expert with demonstrated knowledge, experience and or training may be required to give an opinion to those without my education and particular interests. 3. Had I been determining the matter I would have held that recognition of black lipped abalone was a matter about which expert evidence was not required. And if required was met by the evidence of the Fisheries Officers. 4. This is because of the evidence given by the Fisheries Officers, limited though it was, but primarily because of the fact that the photographs of the seized abalone (Tender bundle Exhibit H tabs 20-22) show a bucket of abalone with distinctive black lips. These photographs meant it was not reasonably open to question that the abalone seized were in fact black lipped abalone and not the much rarer green lipped abalone, which, as might be presumed, have distinctive green lips. 5. Such matters I, as a local, would have presumed were common knowledge in the locality where the events and hearing took place: s 144 Evidence Act. But s 144 Evidence Act was not raised, and the matter was allowed to proceed on the basis that s 79 Evidence Act in the Court below to be satisfied. 6. If s 144 Evidence Act could not apply that does not mean s 78 doesn't have work to do. There are many things of no great complexity that are outside common knowledge but can be subject of expert opinion. This case, I suggest, is an example. The fact that other, possibly more accurate forms of testing could have been undertaken does not demonstrate that the opinions offered were not based on specialised knowledge: Hannes v DPP (Cth) (No. 2) [2006] NSWCCA 373. 7. Fisheries Officers are in a similar position to a police officer with extensive (lawful) experience of the drug trade: Czako v R [2015] NSWCCA 202. If the officer can demonstrate expertise in their field of experience from training or experience, and that their opinion is wholly or substantially based on that knowledge, the opinion rule does not apply. The example from the illicit drug trade seems equally applicable to identification of fish. 8. Here however her Honour did not accept that threshold had been met. And I determined this appeal on that basis. Orders 1. Orders: 1. In each matter the appeal is upheld. 2. I set aside the orders of the Local Court. 3. I make no order as to costs. ********** Amendments 20 December 2022 - Typographical error in [78]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2022