Attorney-General v District Court at Napier HC Napier Civ-2009-441-270

[2009] NZHC 1078

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV 2009-441-270

UNDER  The Judicature Amendment Act 1972

IN THE MATTER OF     An application for judicial review

BETWEEN  THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF FISHERIES

Applicant

ANDTHE DISTRICT COURT AT NAPIER First Respondent

ANDESPLANADE NO 3 LTD Second Respondent

ANDSTEPHEN GRAHAM HARVEY Third Respondent

ANDJAMES EDWARD MCNALLY Fourth Respondent

Hearing:         30 July 2009

Counsel:         A Powell and K Campbell for Applicant

M Logan for Second and Third Respondent
P Ross for Fourth Respondent

Judgment:      19 August 2009 at 3.00pm

JUDGMENT OF MILLER J

[1]      The  Attorney-General,  for  the  Ministry  of  Fisheries,  moves  for  judicial review of a District Court decision to stay fisheries prosecutions for the Ministry’s breach of s 207(4) of the Fisheries Act 1996, which provides that a decision whether to lay charges must be made as soon as reasonably practicable after seizing property

used in the alleged offences.

THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF FISHERIES V THE DISTRICT COURT AT NAPIER AND ORS HC NAP CIV 2009-441-270  19 August 2009

The narrative

[2]      Two  quite  separate  prosecutions  are  involved,  covering  much  the  same period.  The facts are not in dispute, and it is convenient to adopt the Judge’s concise narrative, beginning with the second and third respondents.

[3]      Mr  Harvey  was  the  skipper  of  a  vessel,  the  Natalie  5816,  owned  by

Esplanade, which is a quota owner, fisher, and fish processor.  The Judge found:

[5]      On 17 December 2007 a complaint of unlawful fishing off the Waimarama Coast was received by a Fisheries Officer.  As a result of that complaint the fishing vessel Natalie 5816 was intercepted at the Napier Port at 7.45pm on the same day.  The Defendant Harvey was interviewed and he made what has been described as a full and frank admissions [sic] in relation to his fishing history inside the Waimarama closed area.

[6]       On 18 December 2007 the Natalie was seized and bonded back to its skipper Mr Harvey.

[7]       An   investigation   into   illegal   commercial   fishing   within   the Waimarama closed area was commenced with a view to the possible prosecution of Stephen Harvey, the relevant permit holder Esplanade No. 3

Limited and the directors of that company.

[8]       On 19 December 2007 a statement was taken from the witness who had reported the matter.  On 3 January 2008 a Fisheries Officer plotted the location of the alleged offence and on 13 and 21 February 2008 the directors of Esplanade were interviewed.

[9]       On 19 March 2008 file preparation was completed and the file was sent to the Ministry’s District Compliance Manager for review.

[10]      On 14 April 2008 the review was completed and on 28 April 2008 the file  was forwarded  to  the  Crown  Solicitor’s  office  for  advice  as  to whether charges should be laid.

[11]      On 19 June 2008 the Crown Solicitor wrote to the Ministry with his recommendations for prosecution and a decision was made to prosecute on the same date.   The charges were drafted and on 29 July 2008 the Informations were sworn in the Napier District Court.   It was some time after that when the Defendants were served with those Informations.

[12]      Just over six months passed from the date the Natalie was seized on

18 December 2007 and the date the decision to prosecute was made on 19

June 2008.

[13]      The evidence shows that Christmas is a very busy time for Fisheries Officers which is said to contribute to some of the delay and there are also possible  delays  in  the  Crown  Solicitor’s  office  because  at  the  time  the

primary focus was on a major murder trial that was either underway or about to get underway.

[4]      Also in evidence was a statement of agreed facts recording that the two directors of Esplanade were effectively available for interview from 17 December

2007 to the dates on which they were interviewed, 13 and 21 February 2008.   At interview  they  explained  that  before  the  alleged  offences  they  had  directed Mr Harvey to the Ministry’s offices to check the boundaries of the prohibited areas. I was not told whether he did so.  It is common ground that the boundaries had been gazetted at the time.

[5]      The vessel and its inventory of chattels were returned to Mr Harvey under bond.  He agreed that he was bound to the Crown in the sum of $100,000, which would be forfeit on failure to comply with the bond.  The bond further prescribed that: Mr Harvey must not sell, offer to sell, give away, dispose of, part with possession of, nor to allow any charge over the vessel and its inventory of chattels; he must ensure that the vessel remained insured and in the same condition it was in at the time the Crown released it to him;   should the vessel be lost,  stolen  or destroyed, he must deliver up the full insured value to the Crown;   he must not remove it from New Zealand;  and he must deliver up possession of it at any time, at the direction of the Chief Executive or a fishery officer.

[6]      In relation to the fourth respondent, the property seized was a 4WD owned by a third party who seems to have had no involvement with the offence and was never charged.   Mr McNally had been driving it when he sold crayfish to a hotel.   The Judge’s narrative was as follows:

[14]     On 4 September 2007 a Fisheries Officer received advice that the driver of a Toyota RAV4 motor vehicle had sold crayfish to staff members at a Napier liquor outlet.

[15]      As a result of that information an enquiry was commenced involving an examination of the liquor outlet’s telephone records and its video surveillance footage.  A number of witness statements were taken as well.

[16]      Later in September 2007 a surveillance operation was commenced in relation  to  this  alleged  offending  and  that  operation  terminated  on  9

November  2007  when  the  Defendant  McNally  was  interviewed.     He admitted that he had sold crayfish to staff members at the liquor outlet.

[17]      On 9 November 2007 the Toytoa [sic] RAV4 vehicle was seized and was released back to its owner, a Mr McKenzie, under bond.

[18]     On  28  January  2008  further  investigations  were  continued.    A Fisheries Officer went to the liquor outlet and carried out an identification exercise  by  way  of  photo  montages  with  staff  members  there.     The Defendant was identified as the person who sold the crayfish.

[19]      By 5 February 2008 file preparation was completed and this file was also reviewed by the District Compliance Manager.  On 10 March 2008 that review was completed and on 12 March 2008 the file was sent to the Crown Solicitor’s office for a decision as to whether there was sufficient evidence to prosecute.

[20]     On  8  July  2008  confirmation  was  received  from  the  Crown Solicitor’s office that a prosecution could proceed against Mr McNally and on 28 July 2008 Informations against him were sworn in the Napier District Court.

[21]     In this case just on eight months went by from the seizure of the vehicle on 9 November 2007 to the decision to prosecute being made on 8

July 2008.

[7]      Both prosecutions were called in the District Court at Napier on 3 September

2008, and they have since proceeded in tandem.  An application for stay was made in September but it was not dealt with on an interlocutory basis, apparently because of concerns about jurisdiction.  Rather, the hearing of the informations was begun on 8

December 2008 and the stay was argued immediately, with the hearing then being adjourned part-heard.  A reserved judgment was delivered on 31 March 2009, and this application for review was filed on 5 May.

The District Court decision

[8]      The Judge followed Grigson v Ministry of Fisheries [1998] 3 NZLR 202, recognising that he was bound by that decision. He reasoned that following Grigson the question is not whether there was prejudice or whether an explanation exists, but rather whether the decision to prosecute has been made as soon as reasonably practicable.  It did not matter that the property had been returned under bond, and systemic delay could not excuse the Ministry.   A stay is the means by which the Court is to encourage compliance with the Ministry’s obligation to make its decision as soon as reasonably practicable.

[9]      On the facts, the Judge found that the decision to prosecute was not made as soon as reasonably practicable;   in both cases, admissions were made at the very outset and the rest of the time was spent buttressing the significant evidence already available.   These were very basic cases, not requiring months of analysis of documentation or assessment of relative culpability of many parties;   nor did they involve any complex legal questions.

[10]     The Judge recognised that the timing of the decision to prosecute did not result in any prejudice to the defendants, that the property was returned at once under bond, and that a stay is a serious step.  But because Grigson bound him, he could not take these matters into account.  So all four charges were stayed.   He rejected the Ministry’s attempt to draw an analogy with R v Shaheed (2002) 19 CRNZ 165, which established a balancing test for exclusion of evidence in criminal prosecutions.

The legislation

[11]     The power to seize property which a fishery officer believes on reasonable grounds has been used in the commission of an offence against the Act is found in s 207(1), which provides:

(1)      A fishery officer may seize—

(a)     Any  vessel,  vehicle  or  other  conveyance,   fishing  gear, implement, appliance, material, container, goods, equipment, or thing which he or she believes on reasonable grounds is being or has been or is intended to be used in the commission of an offence against this Act:

(b)Any fish, aquatic life, or seaweed which he or she believes on reasonable grounds are being, or have been, taken, killed, transported, bought, sold, or found in the possession of any person, in contravention of this Act; or any fish, aquatic life, or seaweed with which such fish, aquatic life, or seaweed have been intermixed:

(c)Any  article,  record,  document,  or  thing  which  he  or  she believes on reasonable grounds is evidence of the commission of an offence against this Act.

[12]     Any property seized under this provision is delivered into the custody of the

Chief Executive and is held in the custody of the Crown until a decision is made not

to lay any information or charge for the alleged offence in respect to which the property was seized, or until the completion of such proceedings.  The property must be released forthwith if a decision is made not to lay an information or charge, or on the acquittal of all persons charged with any offence for which forfeiture of the property is a consequence of conviction.

[13]     Under s 208, the Chief Executive may release seized property under bond in such sum and under such securities and conditions, if any, as the Chief Executive may specify. Should the person to whom property is released fail to comply with the conditions of any bond or with any conditions specified by the Chief Executive, the property may be re-seized and the bond estreated.

[14]     The Ministry must decide as soon as reasonably practicable whether to lay charges.  Section 207(4) provides:

The decision whether to lay any information or charge for an alleged offence in respect of which any property is seized under subsection (1) of this section shall be made as soon as reasonably practicable after the property is seized.

[15]     The Court may at any time release the property, on application by the person from whom it was seized or its owner or person entitled to possession.  However, that power is available only once an information or charge has been laid for any alleged offence in respect of which the property was seized under s 207:  s 210(2).

[16]     The Act limits the liability of the Crown.   Section 213 provides that the Crown is not liable to any person for any spoilage or deterioration in the quality of anything seized under s 207, and s 220 provides:

220      Protection of fishery officer from liability

(1)       No fishery officer or high seas fishery inspector who does any act under this Act, or omits to do any act required by this Act, shall be under any civil or criminal liability as a result of that act or omission on the ground of want of jurisdiction or mistake of law or fact, or any other ground, unless he or she has acted, or omitted to act, in bad faith or without reasonable cause.

(4)       The Crown may not be held directly or indirectly liable for an act or omission of any such fishery officer, high seas fishery inspector, or person, unless  the  officer,  inspector,  or  person  would  himself  or  herself  incur liability for the act or omission.

Grigson v Ministry of Fisheries

[17]     Grigson was decided under the Fisheries Act 1983, but it is common ground that s 207(4) is materially identical to s 80(7) of the 1983 Act.  The Ministry brought one charge of purchasing paddle crabs from commercial fishers for sale without a permit or licence, and five of making false statements by describing oil fish as hake. It did so almost two years to the day after the date on which fishery officers seized fish, documents, and the appellant’s truck, which was returned immediately under bond.  The delay of 19 months between seizure of the property and the decision to prosecute was explained in part by the appellant’s reluctance to cooperate and in part by heavy workloads within the Ministry, but even so, the Ministry’s progress in the investigation against the appellant was “pedestrian in the extreme”.

[18]     Giles  J  held  that  the  plain  and  unambiguous  wording  of  the  legislation required a decision to charge or not as soon as reasonably practicable after seizure of property.  The return of property under bond did not remove the need for expedition; bonded property is still subject to conditions, limitations and control as to ownership rights. He held that under s 80(7):

The circumstances justifying stay or dismissal arise not from institutional delay on the part of the Courts as is the case in Martin v Tauranga District Court [1995] 2 NZLR 419 and other similar authorities to which Mr Temm referred. It arises rather from a deliberate act or failure to act on the part of the prosecuting authority. Parliament must have intended that there be some consequence for breach of s 80(7); in my view, the denial of a right to proceed with prosecution is the means by which compliance is to be encouraged.

The parties’ positions

[19]     The Attorney-General does not dispute the Judge’s finding that the Ministry did not make its decision as soon as reasonably practicable, and Mr Powell accepted that the Judge correctly interpreted Grigson.  The Attorney-General’s position is that Grigson is wrong in law.  Although a stay of proceedings was an available response, the District Court Judge was not obliged to enter a stay, and to the extent that he held otherwise he erred in law.   A stay of proceedings is a solemn step which may be taken only in exceptional circumstances, where there has been an abuse of process

precluding a fair trial or which is so inconsistent with the purposes of criminal justice that to proceed with the prosecution would tarnish the Court’s own integrity or offend its sense of justice and propriety.   A stay must also be a proportionate response to such abuse of process.   Specifically, the remedy must relate to the wrong;  in this case, the retention of property for longer than necessary.  As to that, there are alternative remedies, notably the Court’s power to return property once informations have been laid.

[20]     For Esplanade and Mr Harvey, Mr Logan argued that the District Court Judge did not err, for he acknowledged  the  possibility of  remedies  other  than  a  stay, although he did not discuss them in detail.  Further, a stay is an appropriate response as a counterweight to the Ministry’s extraordinary powers to seize property on mere suspicion of offending.   This is regulatory offending, of strict liability, which distinguishes it from the authorities on stays of proceedings in other contexts.  If the Judge erred, this Court nonetheless ought to deny relief in the exercise of its discretion.  He observed that the Ministry had a right of appeal by way of case stated under the Summary Proceedings Act, but did not employ it within time.  He invited me to recognise that, while firms such as Esplanade are subjected to innumerable strict obligations under fisheries law, the Ministry has casually breached its own obligations and now wants to be excused compliance.  I am in no position to assess the question of prejudice, for there was no evidence about it in the District Court, where it was accepted that prejudice is not a material consideration.

[21]     Mr Ross also urged me to decline relief, noting that the Ministry might have asked the District Court to state a case under s 78 of the Summary Proceedings Act, so avoiding judicial review.  He submitted that the legislation affords no real basis for any other remedy, since the power to return property arises only once informations have been laid.  Like Mr Logan, he emphasised that the offence was a minor one and there is no real explanation for the delay.  The Ministry need not seize property if it cannot make a decision swiftly:  it chose to do so, and then sat on its hands.

Principles governing stay of prosecutions generally

[22]     It is now settled that a stay of proceedings is not the usual remedy for delay. In Moevao v Department of Labour [1980] 1 NZLR 464, 470, Richardson J held:

… it cannot be too much emphasised that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution.   It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of.

[23]     In Fox v Attorney-General [2002] 3 NZLR 62, the Court of Appeal reiterated that a stay is an extreme step, justified only where there has been abuse of process. It is not available for disciplinary purposes, nor to reflect a Court’s view that a prosecution should not have been brought:

Conduct amounting to abuse of process is not confined to that which will preclude a fair trial.  Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety.  The power of stay is not available for disciplinary purposes nor to reflect a Court’s view that a prosecution should not have been brought.  The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change  of  course  by  the  prosecution  having  a  prejudicial impact  on  an accused.    Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.

[24]     In R v Williams [2009] 2 NZLR 750 the Supreme Court confirmed that a stay is not the mandatory or even the usual remedy for delay. The Court held that:

Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a court to do so.

The appropriate remedy for breach of the right to trial within a reasonable time is normally public acknowledgement of the wrong, action to expedite the hearing,

reduction in the sentence or release on bail pending trial, and perhaps compensation where a defendant is acquitted.

Stay of fishery prosecutions where property was seized

[25]     I begin with the statutory context.  Section 207(1) allows a fishery officer to seize things which he or she believes on reasonable grounds have been used in the commission of an offence against the Act, or which are evidence of an offence against the Act.  The evident legislative purpose of a power of seizure for that reason is that of ensuring the Act’s sanctions − which include forfeiture of property used in the commission of an offence – are effective, so encouraging compliance with legislation that serves important economic and conservation purposes.

[26]     In s 207(4) the legislature has insisted that the Ministry reach a decision without unreasonable delay.   The obligation is an important counterbalance to the power of seizure before charge, and its breach invites sanctions.  As Mr Powell aptly put it, the language of the subsection is not aspirational.   However, breach of s

207(4) is not synonymous with abuse of Court processes or breach of the right to trial without unreasonable delay (s 25(b) New Zealand Bill of Rights Act 1990);  it rests on the Ministry’s obligation to act expeditiously when it has seized property while it completes its investigation and decides whether to prosecute anyone.  It is enough that the Ministry delayed unreasonably in the circumstances of the case. Indeed, where property is seized not as evidence but because it was used in the commission of the alleged offences, the seizure is not directly connected to the conduct of the prosecution.   In a simple case such as the present, delay might become  unreasonable  long  before  the  two-year  period  for  filing  informations expired.

[27]     For these reasons, the authorities on stay of prosecutions for abuse of process or breach of the NZBORA right to trial without undue delay must be approached with caution.   Section 207(4) recognises that delay causes unfairness, but the unfairness that it contemplates does not rest on abuse of judicial process.  It results from protracted interference with property rights before any charge has been laid.

Unless the Chief Executive chooses to return the property under bond, the owner is deprived of its use and possession until the prosecution is finally resolved.   Such deprivation may have harsh consequences, particularly where the owner is not said to have committed any offence.

[28]     Although the statutory context is distinctive, the stay authorities are relevant when the question is whether a stay is the proper remedy.  I record at this point that Mr Powell accepted that a stay is an available remedy.  (In fairness to him I should also record that I understood the concession was founded on his view that a stay rests on abuse of process rather than breach of s 207(4) per se.)  For his part, Mr Logan offered no rationale for his submission that the authorities do not apply to offences of strict liability, and there is none that I can see. The Court in Williams recognised that the scales may be tipped in favour of a stay where the offending is towards the lower end of the scale, but the legislature plainly did not characterise these offences as minor in kind.   It attached strict obligations and extensive Ministry powers to the privilege of exploiting a public resource.  Further, when considering the impact of delay,  the  Court  may take  into  account not  only property  rights  but  also  other unfairness resulting from the same delay.  For example, delay between seizure and the decision to prosecute may contribute to trial unfairness or abuse of process by the prosecution.   To the extent that the defendant invokes trial unfairness or abuse of process, the authorities on stays of prosecutions generally are directly applicable.

[29]     The authorities establish that a stay is an exceptional remedy, for several reasons: it is tantamount to an acquittal otherwise than on the merits, the Court does not ordinarily intervene in investigations and decisions to prosecute, and the remedy must be proportional to the wrong.  All of these considerations apply when the Court is invited to stay a prosecution for breach of s 207(4), although the second of them must be qualified since the subsection contemplates an inquiry into the prosecution to the extent necessary to decide whether delay was unreasonable.

[30]     Turning to alternative remedies, the legislation provides a remedy directly connected to seizure.   Where a prosecution ensues, the Court may order that the property be returned, and Mr Powell accepted that it might properly employ that power in response to delay in commencing the prosecution.   Of course that is an

incomplete remedy;   it is not available during the pre-prosecution delay itself, but only once an information or charge has been laid.  A breach of s 207(4) might also be reflected in the penalty, so long as the property was that of the offender and he or she was convicted in due course.

[31]     Mr Powell acknowledged that retention of property where the Ministry had not made its decision to prosecute as soon as reasonably practicable might violate s 21 of the New Zealand Bill of Rights Act, which records that everyone has the right to be secure against unreasonable search or seizure.  A declaration would be available, and the authorities show that it can be a proper remedy for delay.  Where the defendant has suffered loss from interference with property rights, however, the question naturally arises whether damages are available.  Mr Powell did not accept that a remedy might lie in damages under the New Zealand Bill of Rights Act.  He also invoked ss 213 and 220 of the Fisheries Act.  Under s 220, no fishery officer who omits to do any act required by the Act shall be under any civil or criminal liability as a result, unless he or she omitted to act in bad faith or without reasonable cause, and the Crown is not liable unless the officer with himself or herself incurred liability for the act or omission.   I prefer not to examine these provisions closely, because my decision does not turn on them and they were not closely analysed in submissions.  Nor did counsel explore causes of action that might sustain a damages claim in this context.  I observe only that the protection from liability appears to be relevantly confined to fishery officers, who may not be the Ministry agents responsible for an omission or failure to make a timely decision to prosecute.

[32]     I respectfully agree with Giles J that the return of property under bond does not excuse delay, for the bond imposes onerous restrictions on the enjoyment of property rights.    For  example,  it  may  curtail  the  owner’s  ability  to  finance  its business operations.  But I depart from his reasoning in that I accept the return of property under bond must be directly relevant, for it substantially mitigates harm to the owner who regains possession and use of the seized property.  So, for example, Esplanade was able to put the Natalie 5816 to work fishing New Zealand waters at once, while the owner of the 4WD was able to resume using it.  Only if the owner wanted  to  deal  with  the  property  in  some  way  would  any  actual  prejudice  be suffered.

[33]     It is also necessary to bear in mind that property susceptible to seizure under s 207(1) is not confined to vessels or other major or income-producing assets.   It might comprise documents or fish, in respect of which the defendant may suffer no significant loss.  Further, the power to seize assets used in an offence is not confined to property of the offender.   It must be an unusual case in which the Court could justify intervening, for breach of s 207(4) alone, in a prosecution against someone who enjoyed no property rights in the thing seized.

[34]     These considerations lead me to conclude that a stay cannot be an automatic or  near-automatic  remedy  for  contravention  of  s  207(4).     Because  a  stay  is tantamount to an acquittal and the remedy must be proportional to the wrong, a stay would ordinarily require both unreasonable delay and prejudice to the defendant that resulted from such delay, was connected to the seizure, and could not be remedied adequately in any other way.  I accept, however, that there may be cases in which no other remedy is both reasonably available and adequate.

Error of law in this case

[35]     Turning to this case, I conclude that the Judge erred in law by holding that a stay followed almost automatically once he found that the decision to prosecute was not made as soon as reasonably practicable.  Contrary to Mr Logan’s submission, he did not approach the decision on the basis that he could take all relevant considerations into account.  He reasoned rather that he could not take into account any lack of prejudice to the defendants, or the fact that the property was immediately bonded back after seizure, or the absence of any impact on fair trial rights.  Each of those things is a relevant consideration that the Judge identified but ignored.   He cannot be faulted for that, of course, because he followed Grigson.   However, I respectfully depart from Giles J’s opinion that a stay is the means by which compliance with (now) s 207(4) is to be encouraged.  That approach treats a stay as a near-automatic consequence, and so requires the Court to discount considerations that the legislation implicitly treats as relevant;  the return of property under bond and the presence or absence of prejudice to the accused.

[36]     It is common ground that the Ministry had a right of appeal by way of case stated under the Summary Proceedings Act.  Section 107 provides that either party may file an appeal within 14 days and then ask the District Court to state a case on a question of law.  If the District Court refuses to do so, thinking the request merely frivolous, the informant may apply to this Court for an order that a case be stated. Under s 78 the District Court may also state a case for the opinion of the High Court on a question of law arising in a proceeding, but that must be done on the hearing of the information or complaint.

[37]     The Ministry did not employ either of these procedures, and the Attorney- General did not bring this application within the 14 days available for a s 107 appeal. An appeal by way of case stated would have allowed this Court to address the questions of law at issue in this proceeding.  The parties agree that judicial review is available, but the availability of a right of appeal may lead the Court to decline relief in the exercise of its remedial discretion.  However, the delay between the District Court decision and the filing of this proceeding was a little over a month, and there is no evidence of prejudice to the defendants associated with the delay.  To the extent that judicial review has increased the costs of bringing the issue to this Court relative to an appeal, the defendants have a remedy in costs.

[38]     Nor can it be said that the District Court decision rested on findings of actual prejudice to the defendants resulting from the unreasonable delay.   As Mr Logan pointed out, the District Court did not hear evidence on prejudice because delay was considered irrelevant, following Grigson.  Contrary to his submission, that does not mean that the defendants are prejudiced in this Court, which will not substitute its own decision on the merits.  They will have an opportunity to address the question of prejudice in the District Court, along with the question whether there is any adequate explanation for delay in circumstances where they have co-operated fully throughout and their allegation that the offending was minor in nature.   Lastly, no abuse of process is alleged.   In the circumstances, there is nothing to displace the principle that a remedy ought follow when the Court finds on judicial review that a decisionmaker has erred in the exercise of a statutory power of decision.

[39]     There will be an order quashing the stay of prosecution of the informations. The District Court should now reconsider the stay applications on their merits.

Costs

[40]     Counsel may file submissions as to costs.   I invite them to seek agreement before doing so.  As the successful party, the Attorney-General would normally be entitled  to  costs  on  a  2B  basis  with  provision  for  one  counsel.    However,  the Ministry would not normally have been awarded costs had it appealed by way of case stated under the Summary Proceedings Act, and the defendants may wish to argue that, for their part, they have been put to additional costs because of the Ministry’s choice of proceeding.

Miller J

Solicitors:

Crown Law, Wellington for the Applicant

Oceanlaw New Zealand, Nelson for Second and Third Respondents

McKay Hill, Napier for Fourth Respondent