Conway v R - [2013] NZCA 438

IN THE COURT OF APPEAL OF NEW ZEALAND

CA806/2009
[2013] NZCA 438

BETWEEN	WILLIAM VICTOR GEORGE CONWAY Appellant
AND	THE QUEEN Respondent

Hearing:	9 September 2013
Court:	Wild, Cooper and Lang JJ
Counsel:	R A A Weir and H J Carson for Appellant J M Jelas for Respondent
Judgment:	24 September 2013 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal, which is against both conviction and sentence, is dismissed.
BThe appellant must surrender himself to the Registrar of the District Court at Auckland at 10 am on Friday 27 September 2013 to commence his sentence.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

On four grounds Mr Conway appeals against his conviction for offences under the Resource Management Act 1991 (the RMA). Those convictions were entered by Judge Harland following a month long jury trial in the District Court at Auckland in August and September 2009.
Mr Conway appeals also against the sentence of six and a half months imprisonment imposed on him by Judge Harland on 18 December 2009.[1]
[1]R v Conway DC Auckland CRI-2008-004-19495, 18 December 2009 (Sentencing Notes).
Although the appeal was filed promptly on 21 December 2009, no fewer than five fixtures to hear it have had to be adjourned over the intervening three and a half years, for differing reasons. None of those adjournments has been caused by this Court.
Counsel informed us that Mr Conway has been on bail throughout that lengthy period, pending the outcome of this appeal.

Factual background

From about July 2001 Mr Conway and his partner Ms Carol Down operated a scrap metal dealing business at 11 Bairds Road, Otara. The business was operated by Cash For Scrap Limited (CFS). Ms Down was that company’s sole director and only shareholder. Mr Conway had responsibility for the day to day running of the scrap metal business.
Concerns about the way the scrap metal yard was being operated led the Auckland Regional Council (ARC) to serve two abatement notices, one on CFS and the other on Mr Conway, in 2001.
In November 2002 the ARC charged CFS and Mr Conway with unauthorised discharges of contaminants at 11 Bairds Rd and failure to comply with an abatement notice.
On 19 December 2002, on the application of the ARC, Judge Whiting made in the Environment Court an enforcement order against CFS and Mr Conway requiring them to cease operating the scrap metal yard at 11 Bairds Rd until measures were taken to comply with the applicable resource consents and provisions of the RMA.
In or about March 2003 CFS extended its scrap metal business onto the adjoining property at 13 Bairds Rd, Otara.
In May 2003 the ARC laid further charges against CFS, Mr Conway and Ms Down alleging breaches of the 19 December 2002 enforcement order during the first half of 2003.
Those charges relating to offending in 2001 and 2003 were set down for trial in the District Court commencing on 17 November 2003. At the start of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Conway v R

Details

AGLC: Conway v R [2013] NZCA 438
Case: [2013] NZCA 438
Decision Date: 24 September 2013 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand dismissed an appeal by William Victor George Conway against his conviction and sentence for offences under the Resource Management Act 1991. Conway had operated a scrap metal business with his partner, and faced multiple charges related to unauthorised discharges of contaminants and failure to comply with abatement notices and enforcement orders. The jury found Conway guilty on all counts, and he was sentenced to six and a half months imprisonment. Conway appealed against both his conviction and sentence, but the Court of Appeal found no merit in his arguments and dismissed the appeal. The Court held that the evidence was sufficient to support the convictions, the admission of Conway's previous statement in civil proceedings was not unfair, there was adequate proof that the contaminants discharged could potentially degrade water quality, and the jury's verdicts were not rendered unsafe by any circumstances. The Court also found that the sentence of six and a half months imprisonment was not manifestly excessive, considering Conway's history of similar offending. Conway was ordered to surrender himself to the Registrar of the District Court at Auckland to commence his sentence.

Orders