Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Stephen Campbell v James Gordon Hitchcock [2005] NSWIRComm 281 PROSECUTOR Inspector Stephen Campbell PARTIES: DEFENDANT James Gordon Hitchcock FILE NUMBER(S): IRC 5660 & 5661 of 2001 CORAM: Walton J Acting President CATCHWORDS: Occupational Health and Safety prosecution - costs - usual order - costs follow the event - discretion to vary usual order - means and ability to pay - defendant ordered to pay 70% of prosecutions costs Criminal Procedure Act 1986 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 1983 Coombs v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56 Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 Inspector Campbell v James Gordon Hitchcock [2005] NSWIRComm 34 Inspector Mansell v Daly Smith Corporation [2005] NSWIRComm 101 Inspector Yeung v Donald Wilson t/as Wilson's Tree Service [2004] NSWIRComm 346 CASES CITED: Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158 Morrison v Powercoal Pty Ltd and Anor (No 3) [2005] NSWIRComm 61 Oshlack v Richmond River Council (1998) 193 CLR 72 O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) (2003) 123 IR 158 Ruddock v Varlis [2001] FCA 1865 WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Ltd (No 2) (2003) 124 IR 459 HEARING DATES: 06/06/2005 DATE OF JUDGMENT: 08/12/2005 PROSECUTOR Mr P Skinner of Counsel SOLICITOR Mr A O'Dea Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT Mr A Moses of Counsel SOLICITOR Mr J Catanzariti Clayton Utz JUDGMENT: 17 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Walton J, Acting President 12 AUGUST 2005 Matter No. IRC 5660 of 2001 INSPECTOR STEPHEN CAMPBELL v JAMES GORDON HITCHCOCK Prosecution under s16(1) and s50(1) of the Occupational Health and Safety Act 1983. Matter No. IRC 5661 of 2001 INSPECTOR STEPHEN CAMPBELL v JAMES GORDON HITCHCOCK Prosecution under s15(1) and s50(1) of the Occupational Health and Safety Act 1983. JUDGMENT RE COSTS [2005] NSWIRComm 281 1 In Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 Mr Hitchcock was convicted of two offences pursuant to s 50 of the Occupational Health and Safety Act 1983 on the foundation that Sayogi Pty Ltd (of which he was a director) had contravened ss 15 and 16. The prosecutor did not sustain either charge in relation to alleged failures to warn employees of the hazards of fatigue and of taking drugs to counter fatigue in the course of long haul truck driving. 2 In Inspector Campbell v James Gordon Hitchcock [2005] NSWIRComm 34 Mr Hitchcock was sentenced to pay a fine of $21,000 in matter number IRC 5660 of 2001 and a fine of $21,000 in matter number IRC 5661 of 2001. Costs were reserved. 3 Written submissions on costs were then filed by both parties and the matter was listed for hearing in relation to costs on 6 June 2005. It was agreed that the court would assess the actual quantum of costs. 4 The prosecutor seeks costs of $415,000. Mr Hitchcock did not dispute that this was a reasonable claim for costs, but sought an order that he pay a percentage of the prosecutor's costs rather than the full amount. This varied from 40% in written submissions to 60-70% in oral submissions to 50% in supplementary written submissions. 5 Although Mr Hitchcock raised a number of arguments, most of them can be dealt with briefly, which I will do, before focussing on the issue of real substance: financial difficulty. Submissions on General Matters Mr Hitchcock 6 Mr Hitchcock made written submissions seeking diminution of the usual order of costs following the event (see for example the Full Bench decisions of Morrison v Powercoal Pty Ltd and Anor (No 3) [2005] NSWIRComm 61 and WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Ltd (No 2) (2003) 124 IR 459) due to the following "special circumstances": (a) Costs Thrown Away The expert's report of Mr Van Den Dool, relied upon by the prosecution, was amended twice. Mr Hitchcock should be reimbursed for the costs thrown away by the legal work reviewing and acting upon the first two drafts of the report by the defendant's legal team (which his solicitor estimated at $22, 972). (b) Failure to Organise Witnesses The court should take into account costs unnecessarily incurred by Mr Hitchcock due to the prosecution's failure to organise witnesses which led to early adjournments on several occasions. Mr Hitchcock's solicitor estimated these costs to be approximately $7140. (c) Two Particulars Not Made Out The prosecution failed to make out the particulars alleging a failure to warn employees of the hazards of fatigue and of taking drugs to counter fatigue in the course of long haul truck driving. The court should take into account the costs incurred preparing Mr Hitchcock's defence in relation to these particulars as part of the general exercise of its discretion. Mr Hitchcock's solicitor estimated these costs to be two days of his time (which was not valued). (d) Precedent Case This litigation involved a "precedent-setting judgment" on the issues of place of work and fatigue in the transport industry, with awkward evidentiary issues, which resulted in a complex, lengthy trial. The Prosecutor 7 The prosecutor made the following written submissions in reply: (a) At common law, no costs could be awarded for or against the Crown in criminal proceedings. This position has been altered by s 253 of the Criminal Procedure Act 1986 which conferred upon the court a broad discretion (which must be exercised judicially) to decide what order to make as to costs. (b) Until recently in this jurisdiction the prosecutor was awarded full costs even when the prosecution was only partially successful: see, for example, Inspector Mansell v Daly Smith Corporation [2005] NSWIRComm 101, in which Staunton J declined to reduce the costs payable by the defendant on the basis that only three of the six particulars in the charge had been made out. (c) The usual practice of awarding full costs to the prosecutor has been varied, on occasion, because of the manner in which the hearing was conducted or where the defendant could be said to have been partially successful in some identifiable and discrete portion of the case. Neither circumstance applied in this case. The costs relating to the two particulars cannot be severed from the costs of litigating the other particulars which were proved. (d) As to Mr Hitchcock's other submissions (with the exception of financial hardship, which I shall discuss below), the prosecutor submitted: (i) No costs were thrown away in relation to the expert report of Mr Van Den Dool - when it was finally admitted, it was virtually identical to the original report; (ii) The prosecution does not accept responsibility for costs incurred as a result of early adjournments. The defendant either agreed to or requested these adjournments, or they were necessary as a result of the defendant's forensic decisions. The prosecution was ready at all times to proceed; and (iii) The legal principles relating to "place of work" were not complicated, and took up little time in evidence, submissions, and the judgment. Moreover, the judgment has not been appealed. Conclusion - General Matters 8 The usual practice of this court in criminal prosecutions is to award costs in favour of the prosecution following a conviction: see Morrison v Powercoal Pty Ltd and Anor (No 3); WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Ltd (No 2); Inspector Mansell v Daly Smith Corporation [2005] NSWIRComm 101; and Coombs v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56. However, the court in its discretion has varied this practice in cases where (for example) the defendant could be said to have been partially successful in some identifiable or discrete portion of the case; or because of the manner in which the hearing was conducted; or where the defendant is impecunious. (See further the discussion in O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) (2003) 123 IR 158 at [198]-[199].) 9 In oral submissions, Mr A Moses of counsel (who appeared on behalf of Mr Hitchcock) conceded that the defendant's arguments in relation to the costs of the unproven particulars were difficult to sustain in the light of cases such as Inspector Mansell v Daly Smith Corporation, and "accepted the force" of the prosecution's submissions in relation to costs incurred due to early adjournments. I consider that these concessions were rightly made, and agree with the prosecutor that these matters do not warrant any departure from the usual order as to costs. This is not a case like O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training), where the prosecution failed to make out two separate charges which pertained to discrete matters. 10 I also reject Mr Hitchcock's assertion that there should be some discount on the basis that the case set a precedent (with the implication, in his reliance upon cases such as Oshlack v Richmond River Council (1998) 193 CLR 72 and Ruddock v Varlis [2001] FCA 1865, that his defence in some way served the public interest above and beyond confirming an accused's right to put the prosecution to proof). In the end, this assertion was only faintly pressed. In my view, Mr Hitchcock's submission that "this litigation involved a precedent setting judgment being made on the issues of place of work and fatigue in the transport industry" cannot be sustained when it has been disavowed by the prosecution (whose decision it was to bring the proceedings); in the absence of any clear evidence of the fact; and in view of the defendant's decision to forgo any right of appeal in this Court (notwithstanding his allegation of a novel point of law clearly within jurisdiction which was decided against him) in favour of proceedings seeking prerogative relief in the New South Wales Court of Appeal. 11 Mr Moses closed his oral submissions by stating that the focal point of the defendant's argument for a reduction in costs was the issue of financial hardship, and conceded that an order to pay 60%-70% of the costs sought by the prosecution may be more appropriate than the 40% initially sought in view of the concessions made by the defendant in relation to the early adjournments and the assertion that this was a precedent-setting case. 12 Although the defendant's submissions in relation to duplication of costs concerning the expert's report have some merit, I agree with the prosecutor that the figure of $22,972 does not reflect costs thrown away. The report which was finally tendered was in almost identical terms to the original version and costs relating to challenging evidentiary issues should not properly be included in this figure. In conclusion, this is a matter which I will take into account in the exercise of my discretion, but plainly it will not be substantial in the context of the total costs disclosed by the parties. Financial Hardship 13 I come to the most important matter bearing on this decision: financial hardship. The Legislation 14 Under ss 4 and 6 of the Fines Act 1996, the Court is required to consider Mr Hitchcock's financial means in determining the appropriate costs order: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 4 Meaning of "fine" (1) For the purposes of this Act, a fine is: ... (f) any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer ... The Evidence 15 Mr Hitchcock's solicitor deposed that Mr Hitchcock had paid his legal costs of $644,363.36 and the total fines of $42,000. 16 Mr Hitchcock swore an affidavit listing revenue; numerous real estate assets; encumbrances upon some of them; Mr Hitchcock's estimate of their value and of the value of some of the encumbrances (unsupported by any independent information); and Mr Moses submitted from the bar table that Mr Hitchcock had no assets apart from those described in the affidavit. Mr Hitchcock was not cross-examined on his affidavit, and the prosecution did not adduce any evidence to challenge it. 17 According to Mr Hitchcock's affidavit he owns the following real estate: (a) Folio 9/245290 - a former fuel depot (which he cannot mortgage due to issues raised by the Environmental Protection Agency) estimated to be worth $200,000; (b) Folio 9/261766 - the family home (mortgaged for $430,000 to pay Mr Hitchcock's legal costs) estimated by Mr Hitchcock to be worth $400,000. I note that the mortgagor evidently considered the property to be worth at least $430,000; (c) Folios 20/248211, 21/248211, 22/248211 and 23/248211 - four properties which have been on the market for 18 months (which secure an overdraft to the National Australia Bank - amount unspecified) estimated by Mr Hitchcock to have a combined worth of $800,000 but in the immediate short-term market only $300,000 - $350,000 due to oversupply; (d) Folios 6/245290, 7/245290 and 8/245290 worth $1,400,000 (mortgaged for $840,000) but with an immediate market value of $750,000 due to oversupply; and (e) Folio 1/810026 - apparently unencumbered, and valued by Mr Hitchcock at between $650,000 and $300,000. 18 It is apparent that, if Mr Hitchcock's evidence is accepted, even on the lowest valuations his net assets are worth approximately $510,000 less any amount due to the National Australia Bank for his overdraft (which, as I have noted, was not included in Mr Hitchcock's affidavit). 19 Despite the extent and diversity of Mr Hitchcock's real estate portfolio, and his success over many years as a hard-nosed business man (according to numerous character testimonials admitted in the sentencing hearing) there was no evidence of any rental income or other revenue from these holdings. On the contrary, Mr Hitchcock deposed that he had no income. 20 According to Mr Hitchcock's affidavit, he has four companies: Jim Hitchcock Haulage; South Star Trucks Pty Limited; Saxini Pty Ltd and Satilux Pty Ltd. The latter two were described as shelf companies with no assets although the financial records showed that in the financial year ended 30 June 2004 Saxini Pty Ltd recorded a total income of $1,034,000; gross income of $278,301; and a net profit of $15,376. 21 Mr Hitchcock deposed that Jim Hitchcock Haulage had suffered significant losses in the wake of his prosecution and he expected that company to record a loss of $500,000 for the financial year ending 30 June 2005. The company's long distance haulage section ceased business in November 2004 and the three remaining trucks in the short haul section were sold in May 2005. No financial records for this company were produced, nor does the court have any information concerning the proceeds of the sale of the long-haul trucks and excess equipment in November 2004 or the sale of the three short-haul trucks in May 2005. 22 Mr Hitchcock further deposed that his mechanical repair business, South Star Trucks Pty Limited, had assets of $1000 only and operated at a loss (having lost 70% of its business due to the demise of Jim Hitchcock Haulage) and would have to close - thereby retrenching five employees - in the event that he was ordered to pay all of the prosecution's costs. The financial records produced for South Star Trucks Pty Limited show net losses of $15,290 and $22,303 for the financial years ended 30 June 2002 and 2003 respectively; a net profit of $10,474 for the financial year ended 30 June 2004; and accumulated losses of $32,029, $44,418, and $33,721 for those respective financial years. A loan of $214,518 in favour of "Hitchcock Service Trust" was recorded in the year ending June 2004, but there was no further evidence concerning this trust. 23 Mr Hitchcock concluded his affidavit by deposing that if he was ordered to pay the prosecution's costs in full he would need two years to pay. I note that, under the Fines Act, the question of whether a costs order may be paid by instalments is a matter for the Registrar, not for this decision. 24 The evidence does raise questions about the extent of Mr Hitchcock's financial difficulties, particularly in the light of his failure to plead impecuniosity in the sentencing hearing (although I note that he faced a maximum total fine of $110,000, significantly less than a potential costs order of $415,000). However, in the absence of any cross-examination or alternative evidence in chief, I am inclined to take the evidence at its highest: although Mr Hitchcock has significant assets, it appears that he would not be able to realise their value easily. Furthermore, he has no income; his two companies are operating at substantial losses; he is maintaining an overdraft; and he has significant mortgage repayments to make. Submissions 25 In the sentencing hearing (where he faced two maximum fines of $55,000), Mr Hitchcock did not raise any submission under the Fines Act questioning his capacity to pay the penalty to be imposed by the Court. Similarly, in the costs hearing, Mr Moses stated that he could not submit in any way that Mr Hitchcock was impecunious. Rather, Mr Moses submitted that a costs order of $415,000 would have a dramatic impact upon Mr Hitchcock's financial circumstances and asked the court to take into account his financial means when exercising its discretion. Mr Moses relied upon the court's finding at [37] in the sentencing decision that Mr Hitchcock had suffered significant adverse changes to his personal, business and professional circumstances. 26 Although Mr Hitchcock undoubtedly had property assets, Mr Moses submitted that the evidence indicated that he had been unable to sell them at a value that would enable him to meet the costs sought by the prosecution. Mr Moses further submitted that if Mr Hitchcock was required to pay the prosecutor's total costs it was likely that he would have to sell his family home. 27 On behalf of the prosecutor, Mr Skinner of counsel submitted that the evidence in support of Mr Hitchcock's assertion of financial hardship was "completely inadequate"; it was clear that he had substantial assets and there was no evidence to support Mr Moses's written submission that Mr Hitchcock may be forced to sell his family home. 28 Mr Skinner further contended that the defendant should not be entitled to incur very high costs in his defence at the hearing (including counsel's fees of $7000 per day); commence proceedings in the New South Wales Court of Appeal seeking prerogative relief; and then claim that he does not have the means to pay the prosecution's costs at first instance incurred at a much lower rate. 29 Mr Skinner submitted that, in this jurisdiction, Parliament has decided that defendants are at risk of costs. There was always a risk that Mr Hitchcock would be required to pay a fine and the prosecution's costs, in addition to his own legal costs, and this should have informed his choices as to how he conducted his defence. The Court should consider Mr Hitchcock's financial means without taking into account his legal fees. Moreover, if the Court follows its usual practice in awarding the full amount of the prosecutor's costs, and Mr Hitchcock cannot pay it, he has other remedies under the Fines Act 1996 or, ultimately, other statutes. 30 In conclusion, Mr Skinner submitted that the defendant had not established any basis for the Court to depart from the usual practice of awarding the prosecutor full costs. Inspector Yeung v Donald Wilson t/as Wilson's Tree Service 31 Both parties agreed upon the relevance of Inspector Yeung v Donald Wilson t/as Wilson's Tree Service [2004] NSWIRComm 346, which, at the time of the hearing on costs in this matter, was reserved under appeal. After oral submissions, judgment on costs was reserved pending the Full Bench's decision in Wilson's Tree Service, and subject to any further written submissions following that decision. 32 On 24 June 2005, the Full Bench handed down its decision in Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158. 33 The decision at first instance involved the sentencing of Mr Wilson (who pleaded guilty to charges under the Occupational Health and Safety Act 2000 following a fatal accident in the course of work removing trees and chipping wood) and the exercise of discretion in relation to the prosecutor's costs. In relation to costs, Boland J held at [51]: 51 The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor's costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court's discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable. 52 The defendant contended that this was an appropriate case in which to make an order that the parties bear their own costs for the following reasons: (a) The defendant has, from the date of the accident, throughout the investigative process and throughout the course of proceedings done his level best to assist the prosecutor. (b) An order as to costs is intended to be compensatory in nature rather than punitive. (c) The defendant is relatively impecunious. Any penalty imposed is likely to have a significant impact on the financial capacity of the defendant. Any order as to costs is likely to result in further financial hardship for the defendant and his family, rendering it more likely that he will be required to sell his family home. (d) In all the circumstances, it is a more just outcome for the prosecutor to bear the entirety or a substantial portion of its costs in the proceedings to date. 53 Having weighed up the objective seriousness of the offence and the relevant subjective factors including, in particular, the defendant's relative impecuniosity, and noting that the purpose of costs is not punishment, I have decided the defendant will pay 20 per cent of the prosecutor's costs. As a consequence of the events of 3 July 2002, which was not all of his own making, the defendant and his young family face a period of quite severe emotional and financial hardship. I can see no point in adding to their difficulties by simply adopting the usual rule that costs follow the event. I do not consider in this case that to do so would be just and reasonable. 34 In addition to appealing the sentence, the prosecutor appealed the trial judge's decision on costs. On appeal, the Full Bench held at [132]-[134]: 132 Section 6 of the Fines Act allows consideration of the financial situation of the respondent in the court's consideration as to the appropriate costs order. Pearlman J reasoned a costs order must be "just and reasonable". Lord Bingham CJ defined the test as an "acceptable total". While the power exists to consider the financial circumstances of a respondent in both penalty and costs the overall result must comply with the test of "just and reasonable". 133 His Honour, in our view, did not fall into error on the issue of costs. In accordance with established principle, the court must make its determination in accordance with s 6 of the Fines Act . The court must also set the appropriate penalty for the offence giving proper weight to the objective seriousness of the offence. The court must then determine the appropriate costs order. Such a consideration, in our view, may also take into account the financial situation of the defendant. In so ordering the court must then determine that the total fine and costs order be an "acceptable total" or as otherwise said "just and reasonable". If the total penalty and costs order is viewed by the court to be excessive the court must make an appropriate adjustment to the costs order. The total must not be disproportionate to the offence. Boland J took into consideration this latter step in his determination as to costs when he stated at [51]: The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor's costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court's discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable. 134 In this matter, his Honour's reasoning reveals he was aware of the unusual order he made and also the discretion the court held as to cost orders when he determined there were such exceptional circumstances. In the application of the appropriate principles and in consideration of the new penalty imposed by the Full Bench we find any order as to costs we would award would mirror the order given by Boland J. We will however return to the practical aspects of this issue when we deal with the costs of the appeal. Supplementary Submissions 35 The parties filed supplementary written submissions following decision of the Full Bench in Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service. 36 Mr Hitchcock relied upon the Full Bench's observations that costs must be determined in accordance with what is "just and reasonable"; should not, in the ordinary way, be "grossly disproportionate to the fine"; and that s 6 of the Fines Act 1996 allows consideration of the defendant's financial circumstances when determining a costs order. 37 Mr Moses reiterated his earlier submissions that Mr Hitchcock had already suffered adverse changes referred to in the sentencing decision and, if ordered to pay all of the prosecutor's costs, there would be further adverse financial effects including the likelihood that he would have to sell the family home. The fact that the defendant's financial situation was in part due to his considerable legal costs should not be taken into account: The prosecutor had properly conceded that the defendant was entitled to defend himself as he saw fit against serious charges. 38 Mr Moses further submitted that the costs of $415,000 sought by the prosecutor were grossly disproportionate to the total fines of $42,000. In light of the defendant's means it would not be an "acceptable total" or "just and reasonable" for the defendant to have to pay $415,000 costs. It would, however, be just and reasonable for the defendant to pay 50% of the prosecutor's costs; although this would still be disproportionate to the fines imposed, it would not be grossly disproportionate. 39 Mr Skinner submitted that the defendant's argument presents a simple mathematical analysis of the relationship between the fine imposed and the costs claimed as "grossly disproportionate" and thus contrary to the decision of the Full Bench in Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service. According to Mr Skinner, this approach misconstrues the principle expressed by Lord Bingham and cited with approval at [131] of the Full Bench decision. Rather, the court should take into consideration the actual cost of proving these offences to a criminal standard; the costs which could have been incurred by the prosecution (taking into account the burden upon the prosecution to run the case and the actual costs incurred by the defendant which far exceeded the prosecution's costs); and the fact that the fines imposed were significant when measured against the maximum available penalties. 40 Mr Skinner submitted that Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service reaffirmed the general principle that any departure from the usual practice of awarding full costs would be unusual and exceptional. Exception was made in that case because the trial judge had received "extensive evidence as to the state of [the defendant's] means" and was satisfied that the defendant was "relatively impecunious". Moreover, the quotation of Lord Bingham approved by the Full Bench emphasised the consideration of the defendant's means and ability to pay, neither of which had been relied upon here by Mr Hitchcock. 41 Finally, Mr Skinner expressly conceded that the effect of the legal fees incurred by the defendant on his financial circumstances should not be taken into account when assessing the defendant's means, and I shall accordingly ignore the prosecution's earlier submissions on the subject. Consideration 42 As I have already noted, there was no dispute that the usual practice would be to award full costs to the prosecution; that in unusual circumstances that practice is varied in the discretion of the court; and that in the light of Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service, the defendant's means and ability to pay may warrant variation of the usual practice. 43 As Mr Skinner submitted, there are differences between Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service and the present case. However, on closer inspection, I believe those differences are, to an extent, misleading. Boland J was satisfied that the defendant in Wilson's Tree Service was "relatively impecunious" with debts exceeding his assets and that he believed that any significant penalty would compel him to sell the family home. Even in these straitened financial circumstances, Boland J ordered the defendant to pay 20% of the prosecutor's costs. 44 I agree with Mr Skinner that the quotation of Lord Bingham approved by the Full Bench in Wilson's Tree Service emphasised the consideration of the defendant's means and ability to pay. In this case, on the evidence (which I have accepted in the absence of cross-examination or any contrary evidence), Mr Hitchcock has assets of approximately $510,000 (less the overdraft, which was unspecified). Although there was no direct evidence to support Mr Moses's repeated submissions that Mr Hitchcock may be forced to sell his family home (such as a statement by Mr Hitchcock to that effect), a moment's reflection reveals the straitened position Mr Hitchcock would be in, should he be ordered to pay the prosecution's costs in full. Depending upon the size of the overdraft, a costs order of $415,000 could easily reduce his assets to zero, or place him into net debt. In addition, with no income, Mr Hitchcock faces increasing liabilities of mortgage interest repayments and significant operating losses (estimated to be $500,000 for Jim Hitchcock Haulage for the year ended June 2005). It is not difficult, in those circumstances, to imagine a failure to meet the mortgage payments on the family home, with all the consequences that might entail. On the other hand, it must be recognised that Mr Hitchcock is in a different position to the defendant in Wilson's Tree Service in that Mr Hitchcock has, at present, a sizeable asset base and this must be taken into consideration in an assessment of costs. 45 In conclusion, based upon my assessment of the evidence and consideration of Mr Hitchcock's means and ability to pay (including the difficulty of realising his assets), and the relatively minor matter of duplication of costs concerning the expert's report, I intend to exercise my discretion to reduce the costs he should be ordered to pay to 70% of the prosecutions costs. 46 The court orders Mr Hitchcock to pay the prosecution's costs in the sum of $290,500. 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.