Fugle v Palmerston North City Council
[2017] NZHC 2030
•24 August 2017
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2017-454-10 [2017] NZHC 2030
BETWEEN LESLIE WILLIAM FUGLE
Appellant
AND
PALMERSTON NORTH CITY COUNCIL
Respondent
Hearing: 21 August 2017 Counsel:
G J Woollaston for Appellant
N Jessen and M W G Riordan for RespondentJudgment:
24 August 2017
JUDGMENT OF THOMAS J
Introduction
[1] Mr Fugle was found guilty of unlawfully carrying out work in relation to a waterworks in a judge alone trial before Judge L C Lowe at the Palmerston North District Court on 10 May 2017.1 The charge was brought under s 225(1)(d) of the Local Government Act 2002 (the Act). In his reserved decision, the Judge amended the charge pursuant to ss 133 and 136 of the Criminal Procedure Act 2011. Mr Fugle now appeals his conviction on the ground he was unfairly prejudiced by the
amendment.
[2] Prior to the hearing of the appeal, Mr Fugle abandoned his other grounds of appeal, including causation. Mr Woollaston, appearing on behalf of Mr Fugle,
confirmed the sole issue on appeal was the amendment of the charge.
1 Palmerston North City Council v Fugle [2017] NZDC 8996.
FUGLE v PALMERSTON NORTH CITY COUNCIL [2017] NZHC 2030 [24 August 2017]
Facts
[3] Mr Fugle is a developer in Palmerston North. One of his projects is a staged subdivision in Aokautere, on the outskirts of Palmerston North.
[4] In most newly developed subdivisions, the developer installs the necessary infrastructure which is then connected to that of the territorial authority. An example of this is water reticulation. Once installed and approved, the territorial authority authorises connection to its water mains system. Property of the newly connected system then vests in the territorial authority for the purposes of water supply, maintenance, and safety. Approval requires various steps, including pressure testing and disinfection of the pipes.
[5] Water reticulation for an earlier stage of the Aokautere subdivision, Stage 6.1C, had already been approved by and vested in the Palmerston North City Council (the Council). The reticulation system terminated on the boundary of a later stage, Stage 6D.
[6] Some time prior to 20 April 2016, the water reticulation system installed in Stage 6D was connected to the terminus of the reticulation system in Stage 6.1C. Pressure testing for Stage 6D took place on 23 November 2015. Disinfection, however, did not.
[7] The terms of the subdivision resource consent required disinfection to be certified to comply with the Council’s disinfection code of practice and good water supply practice. They required:
(a) disinfection be carried out by an approved person; (b) completion of the prescribed form by the developer;
(c) water sampling in accordance with the current drinking water
New Zealand standard;
(d)samples tested for relevant bacteria and contaminants and a copy of the results provided to the Council engineer prior to any connection with the existing reticulated network;
(e) after disinfection, the water main be kept continually charged and remain under pressure until a permanent connection is made;
(f) no connection be made prior to approval from an appropriate Council engineer; and
(g) all connections be made by a contractor approved by the Council.
[8] Disinfection was not carried out on Stage 6D before the connection with Stage 6.1C. The Council was not notified in advance of the connection and the Council gave no authorisation for it to occur.
District Court decision
[9] Mr Fugle was charged and found guilty of contravening s 225(1)(d) of the
Act which provides:2
225 Offences relating to waterworks
(1) Every person commits an offence and is liable on conviction to the penalty set out in section 242(1) who, wilfully or negligently,—
…
(d) carries out work on, or in relation to, a waterworks without first—
(i) notifying the local authority of the intention to carry out the work; and
(ii) obtaining written authorisation from the local authority, with terms or conditions the local authority thinks fit.
…
2 Subsection (2) specifies circumstances in which it is not an offence to carry out works without authorisation and subs (3) specifies defences to a breach of s 225(1)(d). Neither was relied upon by the appellant and neither is relevant for the purposes of this appeal.
[10] The initial charge was framed as the work having been carried out “on a waterworks”, rather than “in relation to a waterworks”. The charge read in full:
That on, or before, 20 April 2016, at Johnstone Drive, Palmerston North, he either wilfully or negligently carried out work on a waterworks without first notifying the informant of the intention to carry out the work and obtaining written authorisation of the Palmerston North City Council.
[11] The essence of the case was, by causing the connection between Stage 6.1C and Stage 6D, Mr Fugle carried out a work on a waterworks without authorisation and therefore committed an offence.
[12] The facts as outlined above were not in dispute before the District Court
Judge. What was in dispute were two issues:
(a) was the work carried out “on a waterworks” as defined in the Act; and
(b) was it Mr Fugle who carried out the work? This appeal now focuses on the first issue only.
[13] The definition of waterworks in the Act relevantly provides:3
waterworks, in relation to the provision of water supply, includes—
…
(c) if vested in a local government organisation, or acquired, constructed, or operated by, or under the control of, a local government organisation,—
reservoirs, dams, bores, tanks, and pipes …
[14] There was evidence a sluice valve or extension had been installed which carried the pipe network beyond Stage 6.1C in which case the actual connection would have been made with a pipe which was not at that time vested in or under the
control of the Council.
3 Local Government Act 2002, s 5(1). Section 124 provides that “local government organisation” includes the Council, council controlled organisations and subsidiaries, and “water supply” means the provision of drinking water by a network of reticulation to the point of supply at each dwelling house and commercial premise to which water is supplied.
[15] Relying on this fact, Mr Woollaston raised the issue before the District Court that there was no evidence of work “on a waterworks”. The Judge acknowledged this argument and stated:
[35] Indeed, the exact point at which the connection was made was not identified in evidence. What was identified was the point at which the stage
6D water main was disconnected when the Council discovered a connection
had been made.
[16] The Judge considered the argument of superficial merit only, noting the provision applies to connections “in relation to” as well as “on” and the undisputed facts established the former if not the latter. The Judge considered, in any event, there was a good argument the wording of the charge included the work carried out “in relation to” the waterworks as a matter of statutory interpretation, having regard to the purpose of the provision. Nevertheless, to rectify any perceived problem, the Judge amended the charge to read “in relation to a waterworks”. The amendment was made following the hearing at the time of issue of the reserved judgment.
[17] In justifying this approach, the Judge canvassed the purpose of s 225 of the Act, the undisputed fact of connection without notification or authorisation, the possibility that amendment was not necessary because a purposive interpretation of s 225 would mean “on” includes “in relation to”, and the lack of prejudice to the appellant if the charge was amended.
[18] The Judge stated that Mr Fugle was not prejudiced because:4
(a) The connection at issue in this case has always been the connection that conveyed water from the Council’s reticulation system to the water main in stage 6D.
(b) That is plainly a connection (ie, work) in relation to a waterworks.
(c) Mr Fugle’s defence has always been that he did not cause that connection. Indeed, his evidence is that he did not find out about the connection until after it had occurred.
(d) The point taken on Mr Fugle’s behalf is a technical one only that has no real foundation in the elements that are required to be proved to establish an offence under s 225(1)(d) and the harm that s 225(1)(d) plainly sets out to prevent.
4 Fugle, above n 1, at [43].
Submissions
[19] Mr Woollaston accepts the Judge had jurisdiction to amend the charge up until verdict but says Mr Fugle’s defence was prejudiced in a way which precluded the Judge from lawfully amending the charge.
[20] Mr Woollaston contends the Judge found there was “no evidence that the connection with the water main in stage 6D was carried out on pipes in stage 6.1C”.5
He suggests this generated an evidential lacuna which the Judge had to avoid by amending the charge.
[21] Mr Woollaston refers to Deliu v National Standards Committee in support of his submission that prejudice to a defendant is a crucial consideration when amending charges.6 He cites R v Martin for the proposition that an inability to recast a defence in the face of an amendment is a level of prejudice likely to be determinative.7
[22] Mr Woollaston suggests the original charge had a deficit of evidence and the defence strategy was predicated on that deficit. The lack of notice of the amendment gave Mr Fugle no opportunity to adduce further evidence or offer alternative arguments, such as by whom the works were carried out and what entity engaged them. Mr Woollaston accepts, given the wording of s 225(1)(d), it was always going to be open to the Judge to amend the charge. He says, however, that if the amendment had been made during the hearing, Mr Fugle would have been entitled to an adjournment. He suggests Mr Fugle may have also considered not defending the charge.
[23] Mr Jessen for the respondent contends Mr Woollaston has mischaracterised the Judge’s findings on the connection. The Judge, rather than finding there was no evidence of a connection on a waterworks, instead simply saw amending the charge as a simpler and easier way to deal with a potentially complicated and unnecessary
legal argument.
5 At [33].
6 Deliu v National Standards Committee [2014] NZHC 2739.
7 R v Martin CA214/00, 23 November 2000.
[24] Further, Mr Jessen submits the Judge specifically addressed matters of prejudice, and found there was none. Referring to R v Bristow and R v Johnston,8 he contends the Judge’s analysis was in accordance with established principles which would prevent an amendment where a defendant is faced with a charge substantially different in nature or effect. Mr Jessen cites the case of R v Hadfield where the wholesale substitution of charges was found to be non-prejudicial.9
[25] In Mr Jessen’s submission, the amendment in the present case was not prejudicial because, first, it was minor and relied on the same factual circumstances to satisfy the offence. Secondly, Mr Fugle’s argument that a different defence strategy would have been taken is untenable. Causation was a central issue at the hearing and the alternative defence strategies for which Mr Fugle now contends were equally pertinent to causation on both the charge as originally framed and the charge as amended. Mr Jessen submits Mr Fugle’s reliance on the supposed deficit in the original charge is demonstrably false because Mr Fugle’s case was that he did not cause or know of the connection. Finally, the notion Mr Fugle may not have defended the charge if it had been originally presented as amended is in direct contrast to his evidence he had a right to conduct the work.
Relevant law
Law relating to appeals against conviction
[26] In accordance with s 232 of the Criminal Procedure Act 2011, an appeal must be allowed if the Court is satisfied a miscarriage of justice has occurred. Relevantly, a miscarriage of justice includes any error which has created a real risk the outcome of the trial was affected or has resulted in an unfair trial.
[27] An unfair trial exists when the errors are prejudicial or give rise to an unacceptable appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.10
Instead, the errors or irregularities must depart from good practice in a manner which
8 R v Bristow [1996] 2 NZLR 251 (HC) at 255; and R v Johnston [1974] 2 NZLR 660 (CA)
at 669.
9 R v Hadfield [2007] NZCA 414 at [48].
10 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must
quash the decision.11
Law relating to amending charges
[28] Sections 133–136 of the Criminal Procedure Act 2011 permit a court to amend a charge at any stage in a proceeding before the delivery of a verdict or decision of the court. This power of amendment is underpinned by the policy that, in the absence of prejudice, a variance between the proof and the charge should not result in an acquittal where there is evidence of an offence.12
[29] The provisions relevant to the present case are ss 133 and 136. Section 133 provides:
133 Amendment of charge
(1) A charge (including any of the particulars required to be specified in a charging document under section 16(2)) may be amended by the court at any stage in a proceeding before the delivery of the verdict or decision of the court.
(2) The amendment may be made on the court’s own motion or on the
application of the prosecutor or the defendant.
(3) A Registrar may, in respect of any offence other than a category 4 offence, exercise the power under subsection (1) if the prosecutor and the defendant consent to the amendment.
[30] If amended during trial, s 133 is subject to s 136, which provides:
136 Procedure if charge amended during trial
(1) Despite sections 21 and 133, during the trial a charge may be amended to substitute one offence for another offence only if—
(a) there appears to be a variance between the proof and the charge; and
(b) the amendment will make the charge fit with the proof.
(2) A charge must be amended under subsection (1) if in the court’s opinion the defendant will not be or has not been misled or prejudiced in his or her defence by the amendment.
11 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R, above n 10, at [28].
12 Jones v Police [1998] 1 NZLR 447 (CA) at 447.
(3) Subsection (4) applies if, in the court’s opinion, the defendant has been misled or prejudiced in his or her defence by any amendment of a charge made during the trial under section 133.
(4) If, in the court’s opinion, the effect of the defendant having been misled or prejudiced might be removed by adjourning or postponing the trial, the court may make the amendment and—
(a) adjourn the trial; or
(b) postpone the trial and discharge the jury.
[31] “During a trial” is read widely and includes any time up until the issue of a reserved verdict.13 The combination of ss 136(1) and 136(2) is important. A court may amend a charge if s 136(1) is satisfied but it must do so if that amendment will not prejudice the defence as per s 136(2).
Analysis
[32] Although no longer a ground of appeal, I will briefly address causation because it is relevant to the claimed prejudice.
[33] The Judge said:
[47] There is no evidence that Mr Fugle physically carried out the water main connection. The issue therefore is whether Mr Fugle was a significant cause of the water main being connected to the town supply.
[34] The Judge canvassed evidence of both Mr Fugle and the Council subdivision engineer, Mr Tokode.14 That evidence included Mr Tokode’s recollection, reports and file notes of onsite inspections showing the Stage 6D reticulation system was connected to Stage 6.1C, Mr Tokode’s onsite and telephone discussions with Mr Fugle, and an email from Mr Fugle to Mr Tokode which stated Mr Fugle’s staff had connected the water main in question. The email was sent on 6 October 2016,
following a dispute with Mr Tokode about the connection. It contained an
attachment entitled “draft notes”, which read in part:
Informant alleges “I” undertook work contravening LGA s 225(1)(d) –
dismissal of the charge is [sought].
Did my staff connect water main in question – yes. Did that connection require council permission – no.
Did council inspect test results ahead of connection – yes. Was council aware connection pending – yes.
[35] The Judge further explained:
[82] The notes went on to explain that staff had installed a sluice valve beyond stage 6.1C as the Council required a right-of-way to be sealed in the vicinity of the boundary between 6D and 6.1C, so the water pipe had to be extended into stage 6D before the right-of-way concrete was poured.
[83] The note further asserted that, as the subsequent connection to the water main had been on private land, ie, within stage 6D, the Council’s permission was not required for the connection.
[84] The notes also claimed that the water main had been chlorinated but, in any event, there was no risk to the town supply because the water pressure would prevent a backflow of water from stage 6D into the town water supply.
[85] In short, Mr Fugle’s email raised a number of justifications for what had occurred, including an assertion that the connection had been lawful, at no stage suggested that he was not responsible for the connection having been made and, what’s more, stated that his staff had connected the water main.
[36] The Judge found Mr Fugle to be an unconvincing witness,15 and rejected his evidence that he did not authorise the connection as being internally contradictory and inconsistent with established facts.16 The evidence instead established that Mr Fugle had a large measure of control over the subdivision operations. On causation, the Judge concluded:
[95] I therefore put Mr Fugle’s evidence to one side. When doing so I am left with a compelling prosecution case that Mr Fugle was responsible for, and caused, the stage 6D water main connection.
Prejudice generally
[37] The oft-argued ground of prejudice is that the defence was conducted on the basis of particular charges and is unable to be recast to meet the charge as amended. Adams on Criminal Law notes there may be no prejudice if:17
(a) the defendant had notice of the likely evidence: R v Bristow [[1996]
2 NZLR 251 (HC)] at 256; R v Zacka CA232/04, 22 September
2004;
(b) the issue as to which amendment is sought was squarely before the jury and the defence had fair opportunity to exploit the variance: R v P CA89/04, 26 October 2004; R v Lewis [2014] NZHC 2331;
(c) the defence relied on is not affected by the amendment: R v Durno
[1973] 1 NZLR 357 (SC);
(d) the factual basis for the new charge comes from the testimony of the defendant: R v Bovey [1964] NZLR 865 (CA).
[38] The amendment to the charge was relatively minor and, in any event, simply reflected the wording of the section of the Act under which the charge was laid. Appellate courts have previously accepted amendments which are more substantive. However, those cases tend to concern instances where the defendant has at least some opportunity to present a defence to the amended charges.18
[39] The argument on prejudice instead stems from the lateness of the amendment. What is at issue is Mr Fugle’s ability to mount a cogent defence strategy overall and challenge that same evidence specifically in relation to the amended charge.
Prejudice stemming from the lateness of the amendment
[40] Prejudice is often claimed to arise from circumstances where a defendant has not had the ability adequately to answer the amended charge. Likelihood of such prejudice arising increases the later the amendment is made.19
[41] The Court of Appeal has upheld several amendments to charges where an appellant has argued prejudice, even where the amendment followed closing of
17 Adams on Criminal Law (looseleaf ed, Thomson Reuters) at [CPA136.06].
18 See for example C (CA66/2015) v R [2016] NZCA 342 at [29].
19 Satybaldin v R [2010] NZCA 593, [2011] 3 NZLR 181 at [34] citing R v Johnston, above n 8, at
664 per McCarthy P and 665 per Richmond J; and R v Hadfield, above n 9, at [45].
submissions. Of relevance to this appeal is R v Hadfield,20 which concerned fraud offending and a more significant amendment which was similarly late, albeit following counsel’s rejection of the Judge’s offer of an adjournment to address the amendment. With respect to the lateness of the amendment, counsel for the appellant argued prejudice arose from the inability to address the numerous new charges. Counsel had proceeded on the basis the Crown had not made out certain elements of the original charges and the defence might have been run differently had the amendments been made earlier. The Court of Appeal agreed with the trial Judge’s analysis that no such prejudice arose because the nature of the amended charges and the evidence of them were the same. The Court of Appeal clarified that a defendant may be prejudiced if counsel had prepared a case in accordance with a theory of the case which is rendered inappropriate by an amendment to a charge:
[51] We agree that an accused may be prejudiced by an amendment if counsel has prepared and presented the case in accordance with a theory of the case which is no longer appropriate, and counsel cannot recast the case to meet the new charge(s): R v Johnston [1974] 2 NZLR 660 at 664 (CA). Obviously, counsel’s theory of the case is likely to have been carried through in the cross-examination of Crown witnesses. However, we also note that a court has power to adjourn the trial to cure any prejudice (s 335(5)). Here the Judge did offer an adjournment, but it was refused.
[42] The key difference between Hadfield and the present case is the offer of an adjournment. It is worth noting that in Hadfield, the trial Judge (with whom the Court of Appeal agreed) decided first there was no prejudice in general but alternatively, if he were wrong and there was prejudice, any such prejudice was alleviated by the offer and refusal of an adjournment. Additional differences include that the appellant in Hadfield originally pleaded guilty, the amendment was more substantial (the wholesale substitution of charges) and there were multiple charges involved.
[43] The amendment in the present case is substantially less significant than in Hadfield. Additionally, in the present case, the Judge considered the relevant matters in a similar way to the approach taken in Hadfield. In light of the Court of Appeal’s approval of that approach, it is difficult to find an error in the analysis of prejudice in
relation to the relative nature of the original and amended charges.
20 R v Hadfield, above n 9.
[44] Satybaldin v R is also of relevance, although it concerned violent offending. In Satybaldin, the Court of Appeal held that substantial amendments after closing submissions but before a judge’s summing up to the jury were not prejudicial.21 In that case, one of five assault charges was divided into two. The appellant was provided no opportunity to give evidence, to cross-examine or to address the jury in respect of the amended charges. This was not prejudicial because the appellant could not point to any way in which the presentation of defence evidence, cross- examination, or closing submissions would have been conducted differently.22
[45] In the present case the main ground for claiming prejudice is that the defence strategy was unable to be recast to meet the charge as amended. I accept the proposition in R v Martin that prejudice arising from such an inability is determinative. However, it is difficult to see how such an inability arises on these facts. First, as noted above, the amendment was minor, reflecting the wording of the provision under which Mr Fugle was charged. It did not result in criminal liability in reliance on new or peripheral facts; it was instead of a technical nature relating to the exact nature of the connection. It did not rely on changes to factual findings of when or how the connection was made, nor who made it.
[46] Secondly, given the technical nature of the amendment and the unchanged evidence, the allegation cannot be described as new or surprising such that Mr Fugle’s defence was irretrievably miscast. If the amendment had been made earlier to enable a response during the hearing, it is difficult to see how Mr Fugle would have modified his defence successfully to raise reasonable doubt on the basis of that technical amendment. The matters at issue were so similar as to be considered the same. Mr Fugle’s contention that he would have directed evidence as to who caused the connection and which company’s staff was responsible is not credible when that was a matter directly addressed by the evidence at the hearing and in his own email to the Council. In addition, Mr Fugle’s email to the Council clearly established both that the connection was made and his position that he was justified
in making the connection. The submission that he may have decided not to defend
21 Satybaldin v R, above n 19, at [34].
22 At [31]–[41].
the charge if it had been amended earlier is not tenable in light of his position as set out in the email.
[47] The difficulty presented by the evidence being (arguably) at variance with the charge was overcome by a minor amendment to the charge. The Court of Appeal has commented that a decision to amend entails:23
… striking a balance between the interests of the prosecution and the policy of the section on the one hand, and what, if any, prejudice there may be to the defendant on the other.
[48] This is an archetypal example of the kind of cases to which ss 133 and 136 of the Criminal Procedure Act 2011 ought to apply. Mr Fugle has failed to show the amendment prejudiced his defence in a way which precluded the amendment of the charge. It is precisely these circumstances that the policy behind the provisions intends to address: in the absence of prejudice, it would not be in the interests of justice to allow a variance between the proof and the charge to result in an acquittal where there is evidence of an offence.
Result
[49] For these reasons, the appeal is dismissed.
Thomas J
Solicitors:
Jacobs Florentine, Palmerston North for Appellant
Cooper Rapley Lawyers, Palmerston for Respondent
23 Jones v Police, above n 12, at 447.
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