Auckland Council v Chand

[2021] NZHC 2789

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-361

[2021] NZHC 2789

BETWEEN

AUCKLAND COUNCIL

Appellant

AND

ANISH CHAND

Respondent

Hearing:

18 October 2021

Appearances:

B Watts for Applicant

W Wilkinson for Respondent

Judgment:

19 October 2021

JUDGMENT OF LANG J

[on appeal on questions of law]

This judgment was delivered by me on 19 October 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland

AUCKLAND COUNCIL v CHAND [2021] NZHC 2789 [19 October 2021]

[1]    Mr Chand pleaded not guilty to a charge laid under s 224(1)(b) of the Food Act 2014 (the Act). This alleged that in operating a food business he had failed to comply with s 50(1)(a) of the Act. This section of the Act required him to ensure the operations of the food business complied with the relevant requirements set out in the Food Control Plan (FCP) for the business that was registered with the Auckland Council.

[2]    At the conclusion of a defended hearing on 23 March 2021 the Judge directed counsel for both parties to file and serve submissions as to whether the manager of an FCP for a food business could be liable as an operator of the business for the purposes of s 50 of the Act. After receiving the submissions the Judge issued a written decision on 29 June 2021 dismissing the charge.1 The Judge held that the Council had not proved beyond reasonable doubt that Mr Chand was the operator of the food business.2

[3]    The Council does not challenge the Judge’s finding that Mr Chand was not the operator of the food business. However, it seeks leave to appeal against the Judge’s decision to dismiss the charge. The Council contends there were alternative legislative routes by which Mr Chand could be found guilty of the charge even though he was not the operator of the food business. It considers the Judge ought to have considered these before dismissing the charge. It therefore seeks an order remitting the proceeding to the District Court to enable the Judge to consider these issues.

The legislative scheme

[4]Section 50(1) of the Act relevantly provides as follows:

50       Duties of operators of registered food control plans

(1)The operator of a registered food control plan must—

(a)ensure that the operations of the food business or food businesses to which the food control plan applies comply with the relevant requirements set out in the plan:

…

1      Auckland Council v Chand [2021] NZDC 11917.

2 At [32].

[5]    On the Council’s behalf Mr Watts points out that a person may be liable for offences committed under the Act in several different ways. The first is as an operator of a food business. This issue was the subject of the Judge’s decision and is no longer in dispute. In addition, however, s 247 of the Act provides as follows:

247     Liability of director or manager of body corporate

(1)This section applies when a body corporate commits an offence against this Act.

(2)A director or manager of the body corporate is also guilty of the offence if it is proved that the director or manager—

(a)authorised, permitted, consented, or participated in the act or omission that constituted the offence; or

(b)knew, or could reasonably be expected to have known, that the offence was to be or was being committed and failed to take all practicable steps to prevent or stop it.

(3)A director or manager may be convicted of an offence against this section even though the body corporate has not been charged with that offence or a similar offence.

[6]    Secondly, s 248(1) of the Act provides that s 66 of the Crimes Act 1961 applies to offences against the Act. This means that a person who procures, encourages, or assists in the commission of an offence will also be liable in the same way as the person who actually commits the offence.3

[7]Thirdly, s 248(3) of the Act provides as follows:

248     Parties to offences

…

(3)        In addition, if a body corporate commits an offence against this Act, a director or an agent of the body corporate is a party to the offence if the director or agent—

(a)authorised, permitted, consented, or participated in the offence; or

(b)knew that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

…

3      Crimes Act 1961, s 66(1).

[8]    The Council now seeks to have the Judge determine whether the evidence given at trial established that Mr Chand was liable under ss 247, 248(1) or 248(3).

Decision

[9]    I have no doubt that Mr Chand was potentially liable under all three subsections. The Council’s stance is clearly arguable. However, questions of fairness arise. It appears that the prosecutor did not articulate the alternative bases on which the Council contended Mr Chand was liable in opening the case for the Council at the beginning of the trial. This meant that Ms Wilkinson, who appeared for Mr Chand at the trial, focussed on the issue that was at the forefront of the Council’s argument, namely that Mr Chand was the operator of the food business. She advises me that she never became aware that the Council contended he was also liable under the alternative pathways to which it now refers.

[10]   The difficulty is compounded further by the fact that neither party made closing submissions at the end of the evidence. Furthermore, the Judge only called for written submissions relating to the issue of whether Mr Chand was the operator of the food business for the purposes of s 50 of the Act. The submissions that counsel filed addressed this issue but did not address the issues now raised by the Council.

[11]   Given that background I do not consider it would be appropriate to remit the proceeding to the District Court as the Council seeks. If the Council seeks to sheet liability home to a defendant under alternative pathways it must make sure the Court and the defendant are made aware at the beginning of the trial that this is the case. Counsel and the Court will then be able to focus their attention, and the evidence, on the issues relevant to each pathway.

Result

[12]The application for leave to appeal is dismissed.

Lang J