Supreme Court New South Wales Medium Neutral Citation: O'Brien v Hutchinson [2012] NSWSC 429 Hearing dates: 5 April 2012 Decision date: 03 May 2012 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1)The summons is dismissed. (2)The Plaintiff is to pay the First Defendant's costs of the proceedings. (3)The exhibits be returned. Catchwords: JUDICIAL REVIEW - local court - certiorari - costs in criminal case - whether magistrate applied proper test to determine whether investigation unreasonable or whether proceedings initiated without reasonable cause Legislation Cited: Criminal Procedure Act 1986, ss 213, 214 Evidence Act 1995, s 57 Impounding Act 1993, s 30 Stock Diseases Regulation 2009 Supreme Court Act 1970, s 69 Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 JD v DPP & 3 Ors [2000] NSWSC 1092 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 Category: Principal judgment Parties: Gerard O'Brien (Plaintiff) Senior Constable Wayne Hutchinson (First Defendant) Magistrate Grogan (Second Defendant) Representation: Counsel: Mr C Steirn SC, Mr G Denman (Plaintiff) Mr M Hutchings (First Defendant) Solicitors: McGirr James Hall & Associates (Plaintiff) Office of the General Counsel (First Defendant) Crown Solicitor's Office (Second Defendant, submitting appearance) File Number(s): 2010/421944 Judgment 1The plaintiff seeks relief under s 69 of the Supreme Court Act 1970 in respect of a refusal by the second defendant, his Honour Magistrate Grogan, to make a costs order against the first defendant under s 213(1) of the Criminal Procedure Act 1986. 2The first defendant, Senior Constable Wayne Hutchison, charged the plaintiff with an offence under s 33 of the Impounding Act 1993. On 23 November 2010 his Honour dismissed the charge. His Honour submits to any order of this Court, save as to costs. Nature of review 3Sections 212 to 214 of the Criminal Procedure Act 1986 provide: "212 When costs may be awarded (1) A court may award costs in criminal proceedings only in accordance with this Act. ... 213 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. ... 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. (2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity. (3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003." 4There is no express right of appeal conferred from a decision to refuse to make an order under s 213. Hence the plaintiff invokes s 69 of the Supreme Court Act. There is no privative or ouster clause in respect of a decision under s 213. It follows that relief under s 69 is available on the grounds discussed in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at pp 175 - 176 including jurisdictional error and error of law on the face of the record. 5The "record" is usually confined to any documentation which initiates the application, the pleadings (if any) and the orders made (Craig at 182). In this state, the definition of the record has been expanded to include the reasons of the inferior court or tribunal (s 69(4) of the Supreme Court Act; see Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [89]). Where jurisdictional error is alleged the Court can, subject to the applicable procedural and evidentiary rules, take account of any relevant material placed before it (Craig at 176). 6The concept of jurisdictional error on the part of an inferior court was discussed in Craig at 176 to 180 and in Kirk at [71] - [75]. The discussion in Kirk emphasises that it is neither necessary nor possible to mark the boundaries of jurisdictional error. Care should be taken to avoid "providing a rigid taxonomy of jurisdictional error" (Kirk at [73]). That said, one formulation of jurisdictional error which arises on the plaintiff's case is the statement in Craig at 177 as follows: "An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that a jurisdiction does exist. Such jurisdictional error can infect either a positive act or refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction." 7The power conferred by s 213(1) of the Criminal Procedure Act cannot be exercised in a case where there is a prosecutor acting in a public capacity unless the Court is "satisfied" of any one or more of s 214(1)(a) to (d). The formation of the opinion in s 214(1) is a "limit" on the function or power conferred by s 213(1) as discussed in the above passage from Craig. It follows that, in a case where a costs order was refused, jurisdictional error will be established if the plaintiff can establish that the Local Court misapprehended the limits placed on it by s 214 (see for example De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 at [32] to [33], per Davies J). Having stated this, six matters should be kept in mind. 8First, the formulation of jurisdictional error that I have extracted from Craig involves establishing that the inferior court "misapprehended" the limits on its power. Just because the matters listed in s 214(1) have a jurisdictional quality does not mean that the role of this Court is to determine whether any of them were met and, if so, conclude that there was jurisdictional error on the part of the Local Court in failing to act. The plaintiff must identify a "misapprehension" by the Local Court as to the limits on its power, not a mere disagreement with the Local Court's conclusion as to those limits. Unless the intention is clearly expressed, legislation will not be construed so as to make the jurisdiction of a court contingent upon the actual existence of a state of facts as distinct from the court's opinion or determination that the facts exist (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, per Dixon J]). The deployment by the legislature of the word "satisfied" in s 214(1) puts beyond doubt that there is no such contrary intention. 9Second, a number of aspects of s 214(1)(a) to (d) involve the exercise of a normative judgment on the part of the Local Court. For example, the Local Court must make an assessment as to whether something was "unreasonable", "improper" or that there were "exceptional circumstances". In Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 the Full Court of the Federal Court noted that conclusions on matters of "opinion or policy or taste" may be "very much a matter of opinion and thus not readily susceptible to review for error of law" (at 199G). Similarly, conclusions by the Local Court as to whether or not failure to take some particular step in the investigation process was "unreasonable" or not can be very much a matter of opinion. In such a case, the task of demonstrating a misapprehension in the Craig sense is that much more difficult. 10Third, an erroneous construction of provisions such as ss 214(1)(a) to (d) will sometimes be apparent on the face of the lower court's reasons. If so the existence of both an error of law and a jurisidictional error will be established. In some cases a misconstruction may only be apparent from an examination of the structure of the lower court's reasons. In other cases a party may point to a disparity between the facts as found and the lower court's conclusion as demonstrative of error. However, it must be remembered that a number of phrases in s 214(1) are not technical legal phrases but words which have a "common understanding". To demonstrate legal error in this latter type of case it would have to be demonstrated that, on the facts as found, no other conclusion was reasonably open other than that the criteria was established (Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24] to [28], per Gleeson CJ, Gummow and Callinan JJ). 11Fourth, a relevant misapprehension is not demonstrated by pointing to a list of matters the court could have, or even should have, taken into account but did not or by pointing to matters the court did take into account, but should not have. In Craig at 180, the High Court held: "... a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error." 12It is only if one took the further step of inferring that, because the inferior court took into account some irrelevant matter or failed to take into account some relevant matter, it thereby misconstrued a limit on its power would any contention based on a failure to take into account relevant considerations or taking into account irrelevant considerations suggest the existence of jurisdictional error. 13Fifth, the failure to take into account a relevant matter or the taking into account of an irrelevant matter by an inferior court might constitute an error of law on the face of the record even if it does not constitute a jurisdictional error. However, the relevant transgression would have to be apparent on the face of the "record". It could not be demonstrated by pointing to a wider set of materials. Moreover, the relevant "matter" would have to be a factor or consideration that as a "matter of law" the lower court was required to consider, or exclude, as the case maybe. Such matters are ascertained from the legislation governing the case in question (see in the context of an administrative decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [73] to [74], per McHugh, Gummow and Hayne JJ). They are not identified by preparing a list of "facts" that it is said should have been considered but were not, or were considered but should not have been. 14Sixth, the material placed before me included the transcript of an ex tempore judgment of the second defendant. It is well recognised that, given the prodigious workload carried by the Local Court, the transcript of such reasons are not to be construed strictly. Instead their substance is to be examined to see whether the correct test was applied (Acuthan v Coates (1986) 6 NSWLR 472 at 478 - 479A, per Kirby P). Background 15Tendered before me was the transcript of the Local Court hearing of the charge and the application for costs. Also tendered was the prosecution brief of evidence and certain letters written to the prosecutor by the solicitor for the plaintiff prior to the hearing. This material was tendered on the hearing of the costs application. I admitted this material provisionally under s 57 of the Evidence Act 1995. At the time I admitted it I indicated that I would address its ultimate evidentiary status after I had heard final submissions. Having heard those submissions, I confirm that I have admitted those exhibits in the proceedings. While only the transcript of the court's reasons for refusing the costs application and the transcript recording the formal application for costs form part of the "record", the balance of the material is relevant to so much of the plaintiff's case that alleges jurisdictional error (see [5]). 16The plaintiff is the owner and operator of two adjacent farming properties in the Lightning Ridge area known as "Neirbor Plains". A Mr Parkins and a Ms Spooner operated neighbouring properties known as "Wilgo", "Gurson" and "Wyoming". From June 2009 the plaintiff agisted a number of "Dorper" sheep on Neirbor Plains. 17Subsection 33(1) of the Impounding Act provides that it is an offence for a person who "causes or permits an animal under his or her control to trespass in a place (other than a public place)". The plaintiff was charged that he did between 9.00am and 11.00am on 22 December 2009 at Lightning Ridge cause or permit Dorper sheep "under his control" to trespass on Wyoming, Gurson and Wilgo, which were said not to be public places. 18The proceedings were heard on 22 and 23 November 2010 in the Local Court at Lightning Ridge. At the close of the prosecution case the plaintiff's solicitor submitted that the prosecution had not established a prima facie case. His Honour accepted that submission. His Honour found: "I am not satisfied that there is evidence that the sheep seen by Mr Smith on 22 December 2010 were sheep that were under the control of Mr O'Brien on that day. I am not satisfied because of Mr Smith's acquiescence and realisation of the different terminology of 'some sheep' to 'those sheep'." 19Mr Smith was the Rangelands Management Officer for the western region of New South Wales. His responsibilities included the monitoring of land use by farmers and graziers who own western land leases. Acting on a complaint from Mr Parkins he had travelled to Wyoming on 15 December 2009. He inspected parts of Wyoming. His inspection revealed that there had been an entry onto Wyoming of Dorper sheep. He returned on 22 December 2009 and performed another inspection with Detective Hutchinson. He had observed similar damage to the pasture and internal and boundary fencing on Wyoming. He observed a number of Dorper sheep on Wyoming on that occasion. The concession referred to by his Honour involved Mr Smith accepting that the Dorper sheep he saw on 22 December 2009 were not necessarily the sheep he had seen on 15 December 2009. 20The transcript records that following the dismissal of the charge the plaintiff's solicitor made an application for costs under s 213 of the Criminal Procedure Act. The transcript does not record the submissions that were made, although it is apparent that reliance was placed on each of ss 214(1)(b), (c) and (d). I will address his Honour's reasons in relation to each of those subparagraphs. His Honour was not satisfied that any of the grounds were made out. Accordingly, his Honour did not consider whether to exercise any residual discretion in s 213 that may exist either to grant or refuse a costs application in circumstances where one or more of ss 214(1)(a) to (d) had been established. Subsection 214(1)(b): Proceedings initiated without reasonable cause 21In relation to s 214(1)(b) the transcript records his Honour's reasons as follows: "The application is made with reference to three of the four paragraphs of s 214(1), namely (b), (c) and (d). 214(1)(b) is on the basis that costs should be awarded because the proceedings were initiated without reasonable cause or in bad faith or conducted by the prosecutor in an improper manner. I am satisfied that there was an extensive investigation in relation to the matter. That can be borne out by the number of statements that were provided in the brief and also by the statement of exhibit 1 in the hearing and that is of Detective Senior constable Wayne Hutchinson. Investigation by Detective Hutchinson involved a number of persons and covered as it so happened a number of months of observations of witnesses. The witnesses provided information concerning sheep on the property known as Wyoming, that is a collective name, from around it would appear July 2009 up till the date of the actual alleged offence and passing that date. The fact that some people were not interviewed does not of itself indicate that the investigation was initiated without reasonable cause. There was sufficient evidence of observations made before the date of the alleged offence and the providence of the sheep on these occasions was established by the admissions of the defendant, the actions of the defendant, the observations witnesses and by conversations with other witnesses, including that of Allan Crawford. These dates however were not the relevant date. There were dates prior to and inclusive of 15 December. When I review the evidence I am not satisfied that there is any evidence of that faith and there is no evidence of the investigation being conducted in an improper manner. There was evidence of control of the sheep, not necessarily the sheep as seen by Peter Smith. Mr Bendall said he had 4000 to 6000 sheep on agistment with the defendant at 40 cents per head. When I review the evidence and the submissions I am not satisfied grounds contained in s 214(1)(b) have been satisfied." 22Although his Honour expressly rejected the contention that the proceedings were initiated in bad faith or conducted in an improper manner, it is not clear that the plaintiff had made any submission to that effect. However, it is clear that the plaintiff had submitted that the proceedings were initiated without reasonable cause. 23Mr Steirn SC with whom Mr Denman of counsel appeared on behalf of the plaintiff contended that his Honour failed to apply the proper test. In particular it was submitted that his Honour had failed to make any examination of the quality, or lack thereof, of the evidence which the police had gathered at the time of laying the charge. Mr Steirn SC referred to the decision of Hidden J in JD v DPP & 3 Ors [2000] NSWSC 1092. 24I am not satisfied that there was such a failure to apply a proper test in this respect. His Honour recounted the investigative steps taken by the first defendant. His Honour noted that there was evidence of the Dorper sheep trespassing onto Wyoming on dates prior to the date of the alleged offence. The transcript records his Honour referring to the "providence" of the sheep being established by "admissions" of the plaintiff. I take this to be a reference to the "provenance" of the sheep on those occasions and admissions by the plaintiff that he had an ability to control the sheep that had trespassed on those occasions. 25His Honour accepted that there was a defect in the prosecution case but did not accept that the defect that was identified meant that the proceedings had been initiated without reasonable cause. Given the history of the trespassing of Dorper sheep onto Wyoming and the admissions by the plaintiff, his Honour considered it was understandable that Mr Smith and the first defendant had proceeded on the basis that the Dorper sheep seen on Wyoming on 22 December 2009 were sheep under the plaintiff's control. This does not reveal any failure to apply a proper test on the part of his Honour. His Honour was alive to the potential difference between a case that failed at a prima facie level and a proceeding that could be characterised as having been initiated without reasonable cause. 26As noted, the plaintiff referred to the judgment of Hidden J in JD. In that case the magistrate stated that he had to be satisfied that the investigation fell "grossly below optimum standards" before concluding it was unreasonable. The plaintiff relied on his Honour's findings at [31] to [32] that the magistrate in that case had thereby applied the wrong test. Hidden J added, (at [31]): "The test is purely objective. To find that the conduct of investigation of a particular case was unreasonable does not necessarily impugn the general competence, far less the integrity, of those responsible for it." 27This part of JD addressed the test now found in subsection 214(1)(a) of the Criminal Procedure Act which was not relied on in this case. In any event there is nothing to suggest that the same error was made by his Honour in this case. 28The balance of the submissions in relation to his Honour's findings in relation to subsection 214(1)(b) contend that his Honour took into account certain irrelevant facts or failed to take into account relevant facts in the course of forming an opinion as to whether the subsection was satisfied. For the reasons I have outline above, these contentions do not allege either an error of law on the face of the record or jurisdictional error. Nevertheless, I will address them to determine if they support a contention that the second defendant misconstrued subsection 214(1)(b). 29The irrelevant matters that it was said that his Honour took into account in addressing subsection 214(1)(b) were: "... that there was an "extensive investigation" on the basis that a large number of statements had been taken and omitting the fact that the first defendant had failed to gather any direct evidence of existence of the sheep on "Wyoming" or the control by the accused of those sheep on 22 December 2009 when considering whether the ground in s 214(1)(b) has been made out. By taking into account the observations of witnesses and admissions by the defendant in relation to sheep under the control of the defendant in the months before 22 December 2009 when those admissions were totally inadmissible and thus not evidence, having been ruled by the second defendant as being "too remote in time" and the "unfair prejudice was not outweighed by the probative value of this evidence" ... By taking into account the inadmissible observations of Mr Bendall that Mr Bendall had 4000 to 6000 sheep on agistment with the defendant when Mr Bendall neither gave evidence nor was a witness in the prosecution, when considering whether the ground in s 214(1)(b) had been made out." 30The first and second of these matters are similar to the complaint made that his Honour applied a wrong test in relation to s 214(1)(b). I have explained his Honour's reasoning process above. It was not irrelevant to his Honour's assessment of whether he was satisfied that the proceedings were initiated without reasonable cause to consider the material gathered by the first defendant about events occurring prior to 22 December 2009. The fact that much of this material was found to be inadmissible at the hearing did not render it irrelevant to the question of whether, at the time of the initiation of the proceedings, there was reasonable cause. Neither of these contentions rises to the point of demonstrating a misconstruction of s 214(1)(b) by his Honour. 31The same observations apply in relation to the third matter, namely the observations of Mr Bendall that he had 4000 to 6000 sheep on agistment with the plaintiff. Mr Bendall told this to the first defendant but the latter's recitation of that conversation was ruled inadmissible as hearsay. Apparently Mr Bendall had advised the first defendant that he did not wish to provide a statement because he did not want to jeopardise his ability to agist his sheep with the plaintiff. The fact that the first defendant was told by the owner of the sheep that he had 4000 to 6000 Dorper sheep on agistment with the plaintiff was not irrelevant to the question of whether or not the proceedings were initiated without reasonable cause. His Honour's reference to it does not indicate any misconstruction of subsection 214(1)(b). 32The plaintiff also submits that in addressing subsection 214(1)(b) his Honour did not take into account the following: "There was no evidence from anyone (apart from Smith) that there was any Dorper sheep trespassing on Wyoming on 22 December 2009; The evidence of Smith could not prove that the sheep he saw on 22 December 2009 were under the control of O'Brien, and there was no evidence of the origin of the Dorper sheep seen by Smith on 22 December 2009. There was no evidence of who had control of the sheep on "Wyoming" on 22 December 2009 and Thus there was no evidence that O'Brien had control of those sheep. There was, even taking the prosecution case at its highest no prima facie case against the plaintiff, neither at the time of charging (11 March 2010) or at the close of the prosecution case." 33Further, the plaintiff submis that had his Honour taken these matters into account he "would have granted cost to the plaintiff". 34Again, as formulated, these complaints do not grapple with the limits on this Court's supervisory jurisdiction. They travel no higher than a re-statement of that which his Honour had already accepted prior to hearing the costs application, namely that there was no prima facie case against the plaintiff. However, as I have explained, his Honour considered that the combination of the observations of trespassing Dorper sheep, admissions by the plaintiff on dates prior to the date of the charge and the evidence of Mr Smith was such that he was not satisfied that the proceedings were initiated without reasonable cause. His Honour's conclusion does not reveal any misconstruction of subsection 214(1)(b) and was otherwise open (cf Vetter). 35The challenge to so much of his Honour's reasoning that concerned subsection 214(1)(b) is not made out. Subsection 214(1)(c): Unreasonable failure to investigate any relevant matter 36Two parts of his Honour's reasons for dismissing the costs application addressed subsection 214(1)(c). They were as follows: "I then turn to s 214(1)(c) where that indicates that costs may be awarded when the court is satisfied that the prosecution unreasonably failed to investigate or to investigate properly any relevant matter of which it was aware or ought 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. It is an interesting section which has not been subject to much judicial review it would appear. When one reads that section it is an inclusive section. It states that the prosecution unreasonably failed to investigate or to investigate properly any relevant matter of which it was aware or ought to have been aware and which suggested either that the accused person might not be guilty or for any other reason the proceedings should not have been brought. What is the evidence which suggested that the accused person might not be guilty? It seems like there must have been an investigation first to find out that that evidence was of such a nature which would suggest the defendant was not guilty. The evidence of Peter Smith which is exhibit 3 and his oral evidence was that he thought the sheep he saw on 22 December were the sheep that he saw on 15 December. It is granted that there was no further identification of the sheep on 22 December and that of itself led to no prima facie case being established. Mr Smith drew a conclusion and an assumption that was not available at law to the requisite proof. The prosecutor investigated the matter by obtaining statements from a number of people including Peter Smith. Much investigation was excluded by the court as being too remote in time and that was done on the basis that there were too many intervening opportunities that could have been present but unknown between early 2009 and the date of the alleged incident, such that the unfair prejudice was not outweighed by the probative value of the evidence. I will come back to 214(1)(c). ... I return to s 214(1)(c). The prosecutor in the form of Detective Senior Constable Hutchinson was entitled in my opinion to rely upon the evidence of Ms Spooner Parkins and Mr Smith when preparing the brief and proceeding to and deciding to proceed with the proceedings. Certainly as I stated at prima facie level an investigation of the sheep seen on 22 February, 22 December by way of ear tags if they were in existence or other outstanding features may have brought about a different conclusion to the proceedings. However I am not satisfied that those matters raised in 214(1)(c) have been established. I am not satisfied that the prosecution unreasonably failed to investigate the matter." 37The plaintiff contends that his Honour applied the wrong test in addressing subsection 214(1)(c) in that his Honour "failed to examine the flaws in the investigation ... and consider any further inquiries which should have been undertaken, when exercising his discretion". There is no discretion being considered at the point of addressing subsection 214(1)(c). Otherwise, his Honour did not make the error that is alleged. His Honour considered whether further inquiries should have been undertaken. His Honour specifically adverted to whether any investigation of any "ear tags if they were in existence or other outstanding features" of the sheep "may have brought about a different conclusion to the proceedings". In dismissing the charge his Honour had noted that there was "no inspection made of the sheep seen on 22 December to determine whether they were tagged." I refer to this further below. 38The plaintiff pointed to a number of facts he claims his Honour should have but failed to take into account when addressing subsection 214(1)(c), namely: "The first defendant has failed to obtain evidence from any eye witness, including himself, Parkins or Spooner, who might have seen Dorper sheep on "Wyoming" on 22 December 2009. The first defendant failed to take a statement from Smith of the sheep Smith saw on 22 December 2009 which identified those sheep to establish that they were in fact under the control of O'Brien. The first defendant failed to inspect or cause to be inspected the PITs on the sheep seen by Smith or to take photographs of the sheep, or establish any evidence to prove that those sheep were under the control of O'Brien. The first defendant failed to obtain evidence that ... O'Brien was in possession of any Dorper sheep at the time of the offence. The first defendant failed to take a statement from J Brown to rebut the possibility that any Dorper sheep seen on "Wyoming" on 22 December 2009 had come from "Warrengulla" and were under the control of O'Brien and not J Brown. The first defendant failed to take steps to rebut the possibility that any Dorper sheep seen on "Wyoming" on 22 December 2009 were from properties other than the plaintiff's property." 39There are a number of matters to note about these contentions in addition to the points made at [11] to [13] above. 40First, I cannot be satisfied that most of the submissions stated above were ventilated before his Honour. I have adverted to the difficulty with the transcript of the submissions of the costs application. The only matter that was not investigated that his Honour referred to was the presence of ear tags. That is the only alleged failure that I infer that his Honour was asked to address. Thus the alleged failure of his Honour to address the other matters goes nowhere in terms of establishing any misconstruction of subsection 214(1)(c). 41Second, for the sake of completeness I note that these contentions misstate the evidence of Mr Smith. Mr Smith was a witness who had seen Dorper sheep on Wyoming on 22 December 2009. His statement records that after he performed the inspection on 22 December 2009 and saw Dorper sheep he did the following: "After this inspection I drove to Neirbo Plains where I spoke to Gerard O'Brien. He gave an undertaking to me that he had contacted the owner of the sheep and told him to move them. The owner of the sheep had told O'Brien that agistment paddocks were hard to find due to dry weather and it could take some time to accomplish this." 42This paragraph was objected to on the hearing of the charge and his Honour rejected it. However, it clearly was material from which it was open to a prosecutor to conclude that as at 22 December 2009 the plaintiff had the ability to control the Dorper sheep on Wyoming, even if it was by giving a direction to the owner. 43The issue of whether the first defendant should have inspected the trespassing sheep for tagging is a matter that has troubled me. Clause 20 of the Stock Diseases Regulation requires that an owner of, inter alia, sheep must ensure the sheep are identified in accordance with cl 19 before stock leaves property on which it is kept, on their arrival in New South Wales or if directed to do so. The form of identifier must at least include the "relevant identification particulars of the stock" (19(a)) which is defined as the "property identification code of the property on or in respect of which the sheep" have been identified (17(1)(b)). 44His Honour accepted that "if [tags] were in existence" they "might have brought about a different conclusion to the proceedings". Nevertheless his Honour found that the failure to inspect the ear tags on 22 December 2009 did not constitute an unreasonable failure to investigate any relevant matter on the part of the prosecution. I construe his Honour's reasons as stating that this failure did not rise to the level of being unreasonable because the first defendant, not unreasonably although wrongly, concluded that he could establish the identify of the trespassing Dorper sheep by reference to events in the past in the circumstance that the two sets of properties adjoined each other. Consistent with [9] above his Honour has made a normative assessment that the failure to take that step was not "unreasonable". Although this was a matter upon which minds may reasonably differ, it does not reveal any misapprehension of subsection 214 (1)(c), and nor does it mean that the facts as found by his Honour meant that the statutory test was necessarily satisfied (see Vetter). 45Under the heading that this aspect of the decision was "unreasonable" or "unjust" the plaintiff restates various inquiries that it is said the first defendant should have undertaken and contends that it was unreasonable for the second defendant not to conclude that subsection 214(1)(c) was established. The difficulty with the contention is that, other than the reference to any tags on the sheep, I cannot be satisfied that the various steps referred to were suggested to his Honour as ones that should have been taken. I have already addressed the complaint about not inspecting the tags. 46The challenge to his Honour's failure to be satisfied as to s 214(1)(c) is not made out. Subsection 214(1)(d): Exceptional circumstances 47The reasons his Honour gave for not being satisfied as to s 214(1)(d) were as follows: "Letters were written to the New South Wales Police Force seeking withdrawal of the matter and these are relied upon and form exhibit A on the application. The fact that the matter was resolved in favour of the defendant does not make the matter an exceptional circumstance. The defendant has to establish something about the conduct of the proceedings being an exceptionable circumstance, other than some matter mentioned in subs (a), (b) or (c) or s 214(1), to make it just and reasonable for the defendant to have his costs. In that regard the mere face that the proceedings resolved in his favour was not enough. There has to be something in relation to the manner in which the proceedings were conducted that has led it to be just and reasonable for the costs order to be made. The fact that Allan Crawford and Mr Bendall did not make statements is not exceptional, that happens quite regularly. It was not the position that the prosecution was not in possession of any identification evidence. When the matter was prepared there was a course of conduct that the prosecutor relied upon by which an inference may have been able to be drawn. However on the application of the defendant and in the exercise of the court's discretion a large amount of that material was excluded as being too remote. At the end of the day the prosecution failed at prima facie level due to the concessions made by Peter Smith in cross-examination and that concession was in relation to the distinction between "those sheep" to '"some sheep". He provided evidence to the prosecution and to the prosecutor of what he deemed to be a continuing chain of identification of the sheep, however this failed. It is not unknown and in fact it is quite regular for representations to be made to the police to have matters withdrawn. Mr McGirr on behalf of the defendant made a number of representations for proceedings to be withdrawn. Mr McGirr has said and this certainly is no criticism of Mr McGirr, that the police - this is a letter dated 14 october, "It appears to us that the police investigation has been scant and one sided and not carried out with any independent attitude toward our client". That was not further expanded upon, nor was there any evidence adduced at any stage or put to any witness to reinforce or enforce that allegation. There were issues such as trespass which were first raised by Mr McGirr in his correspondence of 1 September 2010, urging the prosecution to withdraw the proceedings. There were issues about obligations of landowners and fencing which was raised in that letter as well. There were issues of damages which were raised in that letter as well. There was no mention of tagging or identification of sheep raised in that letter. Subsequent correspondence referred to the subpoena and also in relation to the one-sidedness or scant nature of the investigation." 48In his written submissions the plaintiff contends that his Honour applied the wrong test in addressing subsection 214(1)(d). The nature of the error was not identified and none is apparent to me. 49The plaintiff further submitted that in addressing subsection 214(1)(d) his Honour took into account extraneous or irrelevant matters, namely: "... the evidence of Allan Crawford and Mr Bendall ... in deciding whether the ground in s 214(1)(d) has been made out; when no statement had been obtained on any admissible evidence called from those persons; By taking into account that the plaintiff's solicitor did not mention "tagging or identification of sheep" in his letter to the police dated 1 September 2010. By taking into account that the "prosecution failed" because of Smith's concession is set out above ... There was never any basis on which Smith could identify the sheep he saw at "Wyoming" on 22 December 2009 as the same sheep he saw on 15 December 2009. He did not inspect them and he was relying on what Crawford had told him on 15 December about where Crawford was returning the sheep. In fact the prosecution failed because of the complete lack of evidence of the identification of the sheep." 50The first point has no substance. In addressing the absence of statements from Mr Crawford and Mr Bendall his Honour was responding to a submission that had been made to him on behalf of the plaintiff which suggested that there was something "exceptional" arising by reason of the failure of the police to obtain their statements. 51The absence of reference to tagging in the plaintiff's solicitor's letter was not irrelevant. In making submission in support of the costs application, I infer that the plaintiff's solicitor had relied upon the letters written prior to the hearing of the proceedings seeking the withdrawal of the charge as a matter which, when taken with other matters, might lead his Honour to conclude that there were exceptional circumstances that warranted an award of professional costs. Presumably the plaintiff had submitted that in circumstances where the case had failed at a prima facie level and the prosecution had been put on notice of the likely failure that might satisfy subsection 214(1)(d). I infer that his Honour addressed that submission by addressing the particular points that were raised in the correspondence and comparing them with the grounds upon which the prosecution ultimately failed. His Honour's analysis does not reveal that he considered anything irrelevant or that he misconstrued s 214(1)(d). 52As to the third point in [49], it was not irrelevant for his Honour to describe why the prosecution had failed in circumstances when that reflected his Honour's earlier reasons for dismissing the charge. 53The challenge to his Honour's failure to be satisfied as to s 214(1)(d) is not made out. Conclusion 54The plaintiff has not made good any of his challenges to his Honour's reasons for not being satisfied of any of the criteria in s 214(1)(b) to (d) of the Criminal Procedure Act. Accordingly the challenge to his Honour's refusal to make a costs order fails and the summons must be dismissed. 55The orders of the Court are: (1)The Summons is dismissed. (2)The Plaintiff is to pay the First Defendant's costs of the proceedings. (3)The exhibits be returned. 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: 07 May 2012