Director-General, NSW Department Of Industry & Investment v Coomes [2012] NSWLEC 251

Director-General, NSW Department Of Industry & Investment v Coomes [2012] NSWLEC 251

Costs certificates were granted in favour of the Defendants in relation to the Environmental Planning and Assessment Act 1979 charges because, had the Prosecutor been aware prior to commencing proceedings of the two conflicting notices of development consent and the legal uncertainty this posed as established at trial, it would not have been reasonable to commence prosecution for those EPA Act charges. The Defendants' other claims for costs under the Criminal Procedure Act 1986 failed as the investigation was objectively reasonable given what was known (and not known) to the investigator at the time, the failure to interview Mr Smit was not unreasonable in the circumstances, and...

Parties
Prosecutor: Director-General, NSW Department Of Industry & Investment; First Defendant: James Lawrence Coomes; Second Defendant: Ian Charles Bennett
Jurisdiction
Australia
Judgment Date
13 November 2012
Procedural Posture
Application for Costs Certificate After Acquittal in Class 5 Criminal Proceedings / Post Acquittal (costs Hearing and Determination)
Outcome
Certificates under the Costs in Criminal Cases Act 1967 granted to Defendants for EPA Act charges; costs otherwise reserved.
Legal Topics
Costs in Criminal Cases, Criminal Procedure—investigation and Prosecution Standards, Environmental Offences—development Without Consent, Reasonableness of Prosecution, Statutory Interpretation—presumptions and Requirements Under EPA Act and FM Act
Criminal Law Environmental Law Costs in Criminal Cases Criminal Procedure—investigation and Prosecution Standards Environmental Offences—development Without Consent Reasonableness of Prosecution Statutory Interpretation—presumptions and Requirements Under EPA Act and FM Act

Case Brief

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Parties

Director-General, NSW Department Of Industry & Investment

Prosecutor

James Lawrence Coomes

First Defendant

Ian Charles Bennett

Second Defendant

Procedural Posture

Application for Costs Certificate After Acquittal in Class 5 Criminal Proceedings / Post Acquittal (costs Hearing and Determination)

Legal Issues

  1. 1 Whether Defendants should be granted costs or certificates under the Costs in Criminal Cases Act 1967 after acquittal
  2. 2 Whether the investigation was conducted unreasonably under s 257D(1)(a) and (c) Criminal Procedure Act 1986
  3. 3 Whether proceedings were initiated without reasonable cause under s 257D(1)(b)

Ratio Decidendi

Costs certificates were granted in favour of the Defendants in relation to the Environmental Planning and Assessment Act 1979 charges because, had the Prosecutor been aware prior to commencing proceedings of the two conflicting notices of development consent and the legal uncertainty this posed as established at trial, it would not have been reasonable to commence prosecution for those EPA Act charges. The Defendants' other claims for costs under the Criminal Procedure Act 1986 failed as the investigation was objectively reasonable given what was known (and not known) to the investigator at the time, the failure to interview Mr Smit was not unreasonable in the circumstances, and...

Court Disposition

Certificates under the Costs in Criminal Cases Act 1967 granted to Defendants for EPA Act charges; costs otherwise reserved.

Orders

  • Grants certificates under s 2 of the Costs in Criminal Cases Act 1967 to the Defendants in relation to the charges under the Environmental Planning and Assessment Act 1979 in matter numbers 50063 and 50067 of 2009.
  • Orders that costs be reserved.