New South Wales Court of Criminal Appeal CITATION: Cliftleigh Haulage Pty. Ltd. v. Byron Shire Council [2007] NSWCCA 13 HEARING DATE(S): 15 December 2006 JUDGMENT DATE: 7 February 2007 JUDGMENT OF: Hodgson JA at 1; Howie J at 28; Price J at 29 DECISION: (1)Time limit extended to the date of filing of the stated case. (2) The questions in the stated case answered:; 1. Yes. 2. Yes. 3. No error of law. (3) Matter remitted to Talbot J. (4) The Council to pay the appellant's costs of the stated case. CATCHWORDS: CRIMINAL LAW - PRACTICE - COSTS - Prosecution in local court - Appeal from conviction - Conviction set aside - Circumstances in which costs awarded to appellant - Investigation into the alleged offence conducted in an unreasonable manner - Unreasonable failure to investigate relevant matter - Whether necessary to prove what an absent witness would have said. LEGISLATION CITED: Crimes (Local Courts and Appeal Review) Act 2001 (NSW) s.70 Criminal Appeal Act 1912 (NSW) s.5BA CASES CITED: Killick v. The Queen (1981) 147 CLR 565 Latoudis v. Casey (1990) 170 CLR 534 PARTIES: Cliftleigh Haulage Pty. Limited - applicant Byron Shire Council - opponent FILE NUMBER(S): CCA 2006/1854 COUNSEL: Mr. P. Hamill with E. Ozen for applicant Mr. M. Wright for opponent SOLICITORS: Stacks, Forster for applicant Marsdens Law Group, Sydney for opponent LOWER COURT JURISDICTION: Land & Environment Court of NSW LOWER COURT FILE NUMBER(S): LEP 60004/05 LOWER COURT JUDICIAL OFFICER: Talbot J LOWER COURT DATE OF DECISION: 9 August 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable IN THE COURT OF CRIMINAL APPEAL CCAP 2006/1854 LEP 60004/05 HODGSON JA HOWIE J PRICE J Wednesday 7 February 2007 CLIFTLEIGH HAULAGE PTY. LTD. V. BYRON SHIRE COUNCIL Judgment 1 HODGSON JA: This a stated case pursuant to s.5BA of the Criminal Appeal Act 1912, which section provides as follows: 5BA Case stated from Land and Environment Court (1) A Judge of the Land and Environment Court may submit any question of law arising on any appeal to the Land and Environment Court in its environmental offences appeals jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the Land and Environment Court as it thinks fit. (2) At the request of a person who was the appellant in an appeal referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. 2 Since the time limit in s.5BA(2) was exceeded in this case, the applicant also applies for an extension of time. 3 Talbot J of the Land & Environment Court has stated the case as follows: 1. DETERMINATION: On 26 April 2006 I ordered that 1. The Costs order made by the Court below be set aside; 2. The respondent pay the applicant's costs in the court below in the amount of $7,500 with credit to be given for the amount of $500 already paid; 3. The application for an order that the respondent pay the appellant's costs in this appeal is dismissed. 4. Each party pay their own costs on the Notice of Motion 5. Exhibits may be returned. 2. FACTS: 1. On 1 December 2005, I, whilst upholding an appeal from a decision of a Magistrate at Mullumbimby Local Court on 23 June 2005: Cliftleigh Haulage Ply Ltd v Byron Shire Council [2005] NSWLEC 692 (Cliftleigh No 1), ordered that no order for costs be made unless a Notice of Motion be filed within 7 days of the date of my decision. 2. Such a Notice of Motion was filed. I determined that Notice of Motion on 26 April 2006: Cliftleigh Haulage Ply Ltd v Byron Shire Council [2006] NSWLEC 197 (Cliftleigh No 2). A copy of both these decisions is annexed to this stated case. 3. The appellant had originally been charged with an offence under s 120 of the Protection of the Environment Operations Act 1997 ("PEO Act"). 4. The particulars of the charge related to car crushing activity causing pollutants to discharge into the ground and thereby cause water pollution. Initially particularised as having occurred between 30 July and I August 2004, the particulars were changed, on 21 April 2005, to cover the dates from 30 July to 5 August 2004. 5. The evidence of Council Officers was to the effect that they observed, on 1 August 2004, that cars had been crushed and were on the ground, whereas they were not in that condition on 30 July. The evidence was that there were no employees of the appellant at the site between 27 July and 3 August 2004. However, during that period, an excavator belonging to and used by the appellant in its usual crushing operations remained on site. The keys were left in the excavator: Cliftleigh No 1 [9] 6. Mr Harrop was the occupier and part-owner of the subject land: Cliftleigh No 1 [5]. Officers for the prosecutor did not take a statement from him and he was not called by the prosecutor to give evidence: Cliftleigh No 1 [5], Cliftleigh No 2 [14]. There had been a subpoena issued by the appellant for Mr Harrop's attendance, but he did not answer it. The appellant was cross-examined at first instance about his failure to call Mr Harrop: Cliftleigh No 2 [15]. Because I could not determine what the outcome might have been if Mr Harrop could be called to give evidence, I found that it was not possible to make a positive finding, as I considered was required, about any of the matters set out in s 70 Crimes (Local Courts Appeal and Review) Act ("the Act"). 7. The appellant asserted that nobody with authority to act for the company was present at the site at least between the dates 27 July and 3 August. At least so far as the principal of the appellant company, Mr Irvine, was concerned, I found he had log book entries that unequivocally showed he had left the subject site on 23 July and did not return until lunchtime 4 August: Cliftleigh No 1 [28] 8. Additionally, Mr Irvine gave evidence that as far as he was aware, no employee of the appellant company was even there from 27 July to 3 August: CliftleighNo 1 [30]. 9. I found that the prosecutor had not established beyond reasonable doubt that any persons acting with the authority of the appellant company were at the site between 30 July and 3 August: Cliftleigh No 1 [34]. 10. I further found that in the face of denials on oath by two of the employees of the company that the prosecutor had not eliminated all of the plausible explanations for the crushing of the cars in the period between the visits by the Council officer: Cliftleigh No 1 [35]. 11. In determining the notice of motion: Cliftleigh Haulage Pry Ltd v Byron Shire Council [2006] NSWLEC 197 (Cliftleigh No 2), I made the following findings: 12. That there was no evidence that any person acting with the authority of the appellant company being present on the site during the relevant period: Cliftleigh No 2 [9]. 13. The appellant had argued that, by reason of a telephone conversation between Council Officers and Mr Irvine, and representations sent to the prosecutor on 22 February 2005, that the appellant had raised an alibi. The appellant further argued that having raised the alibi, it fell on the prosecutor to negative it. I found the appellant's argument in relation to the alibi misconceived for the following reasons: a. The representations and telephone conversation merely asserted that there was no one acting with the authority of the company present on the site on 31 July 2004. b. The only reference to proof of that assertion, was a reference to the means by which Mr Irvine's whereabouts on 31 July could be proved, and did not negative the prospect that other employees of the company were present and involved in the crushing work during the relevant period. c. The amendment of the particulars to extend the relevant dates to between 30 July and 5 August meant that the representations asserting that Mr Irvine could prove he was elsewhere on 31 July could not, therefore, be a complete answer to the charge as he could have been present on other days: Cliftleigh No 2 [11]. d. The letter was not accompanied by any proof, but was rather an assertion that the facts could easily be proved: [12]. 14. I therefore concluded that it was entirely reasonable for the prosecutor to take the position that the appellant's evidence could be tested at trial rather than seek to undertake further investigations in response to the raising of the alibi: Cliftleigh No 2 [13]. 15. So far as the failure to call Mr Harrop, I found that no reason had been given for the failure by the prosecutor to call Mr Harrop. Yet he was a significant person of interest who apparently indicated he could give direct evidence of events that occurred during the relevant dates. I found, therefore, that the prosecution had failed to call a critical witness: Cliftleigh No 2 [14]. 16. However, I noted that counsel for the appellant at first instance had, through cross-examination, brought out part of a conversation which tended to suggest that if Mr Harrop had been called, the evidence he would have given would not have assisted the appellant: Cliftleigh No 2 [16]. 17. In Cliftleigh No 1 I dealt with the issue of this hearsay evidence of what Mr Harrop was alleged: to have said: [21]-[26]. I noted that Mr Harrop was said to have told Council Officers that Mr Irvine had been conducting crushing works by crushing the cars with the excavator and taking them to Sydney. Although one of the Officers, Mr Hill, agreed with the proposition that Mr Harrop indicated that Mr Irvine crushed the cars on 31 July, the other, Mr Burnage said that no date had been specified. 18. There was no evidence that Mr Harrop was directly asked about the crushing of cars between 30 July and 1 August by the Council Officers: Cliftleigh No 1 [36]. I found the suggestion from one of the Council Officers that Mr Harrop had specified a date to be unreliable in the context of proving that Mr Irvine or any other person acting for the company crushed cars on the site between the relevant dates: Cliftleigh No 1 [34]. 19. It was common ground that the appellant had been engaged in crushing work. However, the appellant denied undertaking any crushing work during the relevant period, or in the manner that lead to the pollution, being crushing cars on the ground: Cliftleigh No 1 [35]. The appellant contended that its method of crushing such vehicles was very different, in that the vehicles were crushed in a container on the back of a truck to prevent pollutants from escaping from such vehicles into the ground: Cliftleigh No 1 [12]. 20. I therefore concluded, in relation to the second ground relied in support of the Notice of Motion, namely the failure of the prosecutor to call Mr Harrop, that I could not determine what the outcome would have been if he had been called to give evidence at first instance. I was not able to be satisfied that his evidence would have suggested the appellant might not be guilty or that the proceedings should not be brought: Cliftleigh No 2 [17]. 3. DETERMINATION: I determined that I was, for the reasons outlined above, unable to make a positive finding that any of the matters set out in s 70 of the Act had been satisfied: Cliftleigh No 2 [17] I indicated that, had I not felt constrained in the way I set out by the provisions of s 70, I would have made an order in favour of the appellant for the costs of the appeal: Cliftleigh No 2 [20] 4. QUESTIONS OF LAW: The appellant contends that I have erred in law that I misapplied the appropriate test under s 70 of the Act 1. Did I err in law in finding that the requirements of s70 Crimes (Local Courts Appeal and Review) Act 2001 had not been satisfied, thereby refusing to order costs in favour of the successful appellant? 2. Did I err in law in finding that the Appellant had not satisfied the test under s70(1)(a) of the Crimes (Local Courts Appeal and Review) Act 2001? 3. Did I err in finding that, absent any evidence from the appellant regarding alibi, it was entirely reasonable for the prosecutor to take the position that the alibi evidence could be tested at trial, and not need to make his own enquiries, therefore that there was no unreasonable failure to investigate to satisfy s70(1)(c)? 5. The matter to be determined by the Court in whether my determination was erroneous in point of law. 4 The case involves the interpretation of s.70 of the Crimes (Local Courts and Appeal Review) Act 2001 which is in the following terms: 70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter: (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. (2) This section does not apply to the awarding of costs against a respondent acting in a private capacity. (3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003. 5 The two judgments of Talbot J are annexed to the stated case. 6 It appears from them that the Council's case before the Magistrate was that the observations of its officers of premises where the appellant conducted car-crushing observations, on 30 July 2004 (when no crushed cars were observed on the ground) and on 1 August 2004 (when crushed cars were observed on the ground), supported an inference that pollution-causing car-crushing activities had been carried out on the premises between these dates, and that those activities had been conducted by the appellant. 7 The appellant's case was that none of its employees were on the site during that period, and that the method it used to crush cars would not have resulted in cars being on the ground as observed by Council officers. 8 In the result, Talbot J held that it was not established to the requisite standard that the appellant conducted the relevant activities. 9 During the hearing before the Magistrate, evidence was given by three Council officers of a conversation on 1 August 2004 with Mr. Harrop, occupier and part owner of the land in question, who said words to the effect that Mr. Irvine (the principal of the appellant) was crushing cars on the site, with no dates being specified. Under cross-examination, a question was put to each of the Council officers suggesting that Mr. Harrop had said that Mr. Irvine had been on the site on 31 July 2004, to which one of the officers said "Yes", another said "I believe so yes" and the third said "I don't think there was a date specified". SUBMISSIONS 10 Mr. Hammill SC for the appellant submitted that Talbot J erred in law in finding that the requirements of s.70(1)(a) and (c) were not satisfied. In relation to both paragraphs, the appellant relied on deficiencies in the Council's investigation in relation to the witness Mr. Harrop and an alibi raised by the appellant. 11 In relation to Mr. Harrop, Mr. Hammill submitted that the Council should have enquired of him as to what he observed in relation to the crushing of cars between the nominated dates and whether any employee of the appellant was present on those dates; and should have taken a statement from him and called him as a witness, there being no reason advanced why this was not done. Talbot J rejected the Council's argument that it was entitled to run its case as it saw fit, and that it was up to the defendant to call Mr. Harrop if it saw fit; and he found that Mr. Harrop was a significant person of interest who had apparently indicated he could give direct evidence of events during the relevant dates, and that the Council did not elect to call a critical witness. Mr. Hammill submitted that Talbot J's reasons for not finding the requirements of s.70(1) satisfied, namely that he could not determine what the outcome would have been if Mr. Harrop had been called, indicated an erroneous construction of the section. Even if this could be a reason for not being satisfied that s.70(1)(c) was satisfied, it was not a reason for not being satisfied that s.70(1)(a) was satisfied. 12 In relation to alibi, Mr. Hammill submitted that a prosecuting authority has an obligation to investigate an alibi once it is raised, particularly because, once an alibi is put forward, the prosecution must negative it beyond reasonable doubt: Killick v. The Queen (1981) 147 CLR 565. Talbot J erred by proceeding on the basis that there needed to be proof of an alibi, disclosed to the prosecution, in order to enliven any obligation on the prosecutor to investigate an alibi. 13 Mr. Hammill referred to Latoudis v. Casey (1990) 170 CLR 534, and submitted that if the Council was to receive the benefit of the protection given by s.70, it should discharge responsibilities similar to those cast on the Director of Public Prosecutions, including conducting a reasonable investigation into an alibi provided by the defendant. 14 Mr. Wright for the Council submitted that it was open to Talbot J to conclude, on the material before him, that he could not make the positive findings advocated by the appellant under s.70(1)(a) and/or (c). It is not the case that an investigation must have been conducted unreasonably when a finding has been made that the prosecutor did not call a material or critical witness. Talbot J said he did not infer that the prosecution had unreasonably failed to investigate any matter. 15 Mr. Wright also submitted that the prosecution had put its case on alternative bases that did not require attendance by the appellant's employees between 30 July and 1 August 2004, namely by reason of cars being crushed between 1 August and 4 August 2004, and by reason of crushing equipment being left in an operable state on the site. 16 He submitted that, even in relation to s.70(1)(a), the requirements were not satisfied unless the unreasonable manner of investigation was material to the bringing of the prosecution; so that the person seeking costs had to show that it led to a prosecution being brought which otherwise would or should have been brought. Accordingly, it was sufficient for Talbot J not to be satisfied what the outcome would have been if Mr. Harrop had been called. DECISION 17 The relevant questions were whether the investigation into the alleged offence was conducted in an unreasonable manner, or whether the prosecutor unreasonably failed to investigate (or investigate properly) any relevant matter. No question was raised as to whether the proceedings were conducted by the prosecutor in an improper manner, under par.(b) of s.70(1). 18 In my opinion, the submissions based on the failure to call Mr. Harrop at the hearing are therefore misconceived. That failure relates to the manner in which the proceedings were conducted, not to the investigation. In any event, the finding of Talbot J did not amount to a finding that the proceedings were conducted in an improper manner. 19 However, in my opinion there is force in the submission that, in investigating the matter, Council officers should have asked Mr. Harrop what he observed between the nominated dates in relation to the crushing of cars and the presence on site of the employees of the appellant, particularly after the appellant had asserted to the Council that Mr. Irvine was not at the site, and that no other person authorised by the appellant was at the site, at relevant times. Whether or not it would have been reasonable to rely on a circumstantial case before that assertion was made, it is certainly arguable that it was no longer reasonable after the assertion was made, in circumstances where there was a witness who may have been able to give direct evidence of what occurred. 20 As regards s.70(1)(c), it could be said that a person seeking costs must identify a matter that the prosecution was or ought to have been aware of and that suggested that the appellant might not be guilty or that the proceedings should not have been brought. If the "matter" in question here is that there was a possible eye-witness, then it was not shown that this matter suggested that the appellant might not be guilty. If the "matter" in question is the evidence that that witness could give, although it could be said that the Council should have been aware of it, it was not shown that this evidence suggested that the appellant might not be guilty. Accordingly, in relation to s.70(1)(c), I do not think error by the primary judge was shown. 21 However, in relation to s.70(1)(a), I do not think it is necessary for the person seeking costs in every case to show that an investigation conducted in a reasonable manner would have suggested that the appellant might not be guilty or that the proceedings ought not to be brought. If a prosecutor knows there are five eye-witnesses to an event, and interviews and calls only one of them, and the prosecution then fails, I think s.70(1)(a) may apply even if the person seeking costs does not prove what the other four witnesses would have said. Similarly, closer to this case, if the prosecutor knows there is an eye-witness to what happened, but does not interview this witness, and instead relies wholly on a circumstantial case, in my opinion s.70(1)(a) may be satisfied even if the person seeking costs does not prove what the eye-witness would have said. 22 The only relevant reason given by the primary judge for not finding s.70(1) satisfied in relation to Mr. Harrop was that he could not determine what the outcome would have been if Mr. Harrop had been called. In my opinion, this could not be a sufficient reason for determining that s.70(1)(a) does not apply. The primary judge did not give reasons that could justify such a determination, and in my opinion this amounts to an error of law. 23 In my opinion, there was no independent error of law in relation to alibi. The mere assertion on behalf of the appellant that no-one with the authority of the company was on the site on 31 July 2004, and that it could be proved that Mr. Irvine was elsewhere, did not as a matter of law necessarily require a conclusion that it was unreasonable for the Council not to investigate Mr. Irvine's possible alibi or to enquire whether or not there were alibis for all other employees. Any requirement for the prosecution to disprove alibis beyond reasonable doubt only arises if there is evidence capable of raising a reasonable doubt as to whether an accused was elsewhere at the time of the offence; and mere assertion by an accused person that there is an alibi is insufficient for this. If there was error by Talbot J on this aspect, it was an error of fact. 24 Accordingly, it will be necessary for Talbot J to reconsider the question under s.70(1)(a) in the light of these reasons: that is, it will be necessary for him to consider whether, having regard to the matters referred to in par.[19] of this judgment, the investigation into the alleged offence was conducted in an unreasonable manner. 25 At present, I see no reason why the costs of this appeal should not follow the event, and I would so order. If the Council wishes to submit to the contrary, it should do so by written submissions within 7 days, with any response to be provided within a further 7 days. Otherwise the order made today would stand. CONCLUSION 26 There is evidence that the appellant made a reasonable attempt to comply with the time limit in s.5AB, and in my opinion the time limit should be extended. 27 I propose the following orders: (1) Time limit extended to the date of filing of the stated case. (2) The questions in the stated case answered: 1. Yes. 2. Yes. 3. No error of law. (3) Matter remitted to Talbot J. (4) The Council to pay the appellant's costs of the stated case. 28 HOWIE J: I agree with Hodgson JA. 29 PRICE J: I agree with Hodgson JA. ********** 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.