COSTS IN CRIMINAL PROCEEDINGS
The Court of Criminal Appeal recently held delays by the defence in serving an expert report until after the prosecution closes its case, operates against the defence in any subsequent application for costs.
The appellants removed trees that were allegedly part of an endangered ecological community. After the prosecution closed its case, the defence tendered a report by a soil expert which concluded the land was not part of an endangered ecological community. The prosecution subsequently withdrew the charges. The judge dismissed the case and refused the appellants' application for costs. The appellants appealed to the Court of Criminal Appeal regarding the refusal to order costs.
On appeal, the appellants submitted that costs should have been awarded on the grounds that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonable to have been aware. The Court of Criminal Appeal found there was no evidence to establish whether the prosecution unreasonably failed to investigate, or investigate properly, the matter, despite the defence’s expert evidence undermining the prosecution’s case.
Instead, the Court of Criminal Appeal looked to the relevance of the timeframe as to when the report was served. On this basis, the appellants conceded they did not serve the expert report earlier in order to gain a tactical advantage. The appeal was subsequently dismissed.
