Fulton Hogan Ltd v Canterbury Regional Council
[2019] NZHC 1767
•25 July 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000107
[2019] NZHC 1767
UNDER the Criminal Procedure Act 2011 IN THE MATTER
of an appeal against a decision of the District Court
BETWEEN
FULTON HOGAN LIMITED
Appellant
AND
CANTERBURY REGIONAL COUNCIL
Respondent
Hearing: 25 February 2019 Appearances:
J H M Eaton QC and A C Limmer for Appellant J L S Shaw for Respondent
Judgment:
25 July 2019
JUDGMENT OF OSBORNE J
(on appeal)
This judgment was delivered by me on 25 July 2019 at 3.00 pm
Registrar/Deputy Registrar Date:
FULTON HOGAN LIMITED v CANTERBURY REGIONAL COUNCIL [2019] NZHC 1767 [25 July 2019]
Background
[1] The Canterbury Regional Council has brought charges under the Resource Management Act 1991 (RMA) against Fulton Hogan Ltd (Fulton Hogan).
[2] Fulton Hogan applied to the District Court for dismissal of the charges under s 147 Criminal Procedure Act 2011 (CPA) (dismissal application).
[3] Judge Hassan declined the application for dismissal of charges but directed the Council to provide further particulars in relation to the basis of liability alleged.1
[4] Fulton Hogan, pursuant to s 296 CPA, sought leave to appeal on five questions (of law). I return to those below at [32], I will first set out matters relating to the charges, then identify the relevant statutory framework, and summarise the findings in the District Court judgment.
The charges
[5]The charging documents stated:
(a)[in CRN ended #13]:
Fulton Hogan … On or about 21 April 2017 … at Kowai River, Canterbury … Contravened s 13(1)(b) of the … [RMA] by excavating or otherwise disturbing the bed of the Kowai River when not expressly allowed to do so by a national environmental standard, a rule in a regional plan as well as a rule in a proposed regional plan, or a resource consent. … Sections 338(1)(a), 339(1)(b) and 13(1)(b) of the
…. [RMA].
(the excavation charge)
(b)[in CRN ended #12]:
Fulton Hogan … Between 21 April 2017 and 27 April 2017 … at Kowai River, Canterbury … Contravened s 14(2)(a) of the … [RMA] by diverting water of the Kowai River when not expressly allowed to do so by a national environmental standard, a rule in a regional plan
1 Fulton Hogan Ltd v Canterbury Regional Council [2018] NZDC 17099.
as well as a rule in a proposed regional plan, or a resource consent. … Sections 338(1)(a), 339(1)(b) and 14(2)(a) of the …. [RMA].
(the water diversion charge)
[6] The charges are essentially identical to those against two co-defendants, being Taylors Contracting Co Ltd (Taylors) and Fergus Shirtcliff. All charges are in respect to a single incident in which an excavator was used on the bed of the Kowai River. Taylors pleaded guilty and was convicted and fined $35,000.00.2 Mr Shirtcliff, an employee of Taylors, was discharged without conviction under s 106 Sentencing Act 2002.3
The Council’s case
[7] The Council’s case is summarised in a Summary of Facts submitted in relation to all defendants. The facts alleged include that:
(a)Fulton Hogan and Taylors were involved in a joint venture under the Central Plains Water Enhancement Scheme to construct a water storage dam on the Waimakariri River, near its confluence with the Kowai River. Fulton Hogan utilised a consent it held for extraction of gravel from the Kowai River (the resource consent).
(b)Taylors undertook the extraction of the gravel. Mr Shirtcliff was a digger driver involved in the works.
(c)On 21 April 2017, Mr Shirtcliff, using his excavator, constructed a gravel bund in the bed of the Kowai River which had the effect of diverting one of the river’s braids (the 21 April works).
(d)The diversion was to overcome the difficulty of extracting the required gravel without traversing the diverted braid.
2 Canterbury Regional Council v Taylors Contracting Co Ltd [2018] NZDC 7710.
3 Canterbury Regional Council v Shirtcliff [2018] NZDC 13595.
(e)The Council asserts that the 21 April works followed consultation between Fulton Hogan’s Environmental Manager and Taylors’ Construction Manager.
(f)The Council asserts that the 21 April works were not permitted by the resource consent or any other applicable rule or standard, and constituted breaches of ss 13(1)(b) and 14(2)(a) RMA.
(g)Hence the two charges as summarised at [5] above.
[8] That is a summary of matters covered in the Summary of Facts, provided to Fulton Hogan a few weeks after the charging documents were served. Particular passages in the Summary of Facts which refer to the relationship between Fulton Hogan and Taylors are:
2.2Fulton Hogan looked to extract suitable gravel materials from a nearby consented site on the Kowai River (the Kowai site)…
2.3Fulton Hogan holds resource consent CRC166199 (the Resource Consent) which provides for Fulton Hogan to extract and deposit gravel, sand and other natural material and to disturb the bed of the Kowai River.
…
2.7 On 12 April 2017 Fulton Hogan advised Canterbury Regional Council (the Council) by email that gravel take would recommence over a three month period from 13 April 2017 at the Kowai Site and that Taylors would be carrying out the work for Fulton Hogan.
Further particulars directed and provided
[9] Judge Hassan, in the exercise of his Honour’s jurisdiction under s 18 CPA, ordered the Council to provide further particularisation to confirm that the liability alleged in the two charging documents is:
(a)vicarious only; and
(b)only in respect of the specified offending of Taylors.
[10] The Council, in response to the District Court’s direction, filed a memorandum stated to be “on vicarious liability”. After an introductory paragraph, the Council recorded:
2.In respect of both charges the Council alleges that, pursuant to s 340(1)(a) of the Resource Management Act 1991, Fulton Hogan is vicariously liable for the offences committed by Taylors Contracting Limited. The actions of Fergus Shirtcliff will be relevant to Fulton Hogan’s liability in that the offences committed by Taylors Contracting were founded on vicarious liability for the offences committed by Mr Shirtcliff as its employee.
3.The Council accepts that to establish the charges against Fulton Hogan it will be required, inter alia, to prove beyond reasonable doubt a qualifying agency relationship between Fulton Hogan and Taylors Contracting.
4.The Council does not rely upon either direct liability or indirect liability (as those terms are used in paragraph 17 of the submissions filed on behalf of Fulton Hogan for the pre-trial hearing).
[11] The reference to a passage in Fulton Hogan’s submissions at the pre-trial hearing was to a paragraph in which Mr Eaton QC, for Fulton Hogan, had distinguished between three different bases of liability, being direct liability (where a company contravenes the relevant section); indirect liability (where the company permits a contravention of the relevant section); and vicarious liability (where the offence is committed by the company’s agent or employee, the company then not committing the primary offence but being held vicariously liable for another person’s offending).
[12] The solicitors for Fulton Hogan by letter sought further clarification of the Council’s position, recording:
2.Notwithstanding the purported intention of Council’s [sic] memorandum, we write to clarify the liability alleged against Fulton Hogan given the content of paragraph 2 and its references to Mr Shirtcliff, and given also the differences between the Summary of Facts upon which the other two defendants have been sentenced.
3.We seek to obtain certainty that the Council is not alleging Fulton Hogan directed or otherwise advised Mr Shirtcliff the actions he undertook were permissible? Of course, any such allegation is unreservedly refuted.
4.We also ask you to confirm the Council is not alleging Mr Ewers directed or otherwise advised Mr Shirtcliff the actions he undertook were permissible?
[13]The Council’s solicitors, by letter, responded:
2.As its primary allegation, the Council does allege that Omar Seychell (Fulton Hogan’s Environmental Manager) and Aaron Ewers (Taylors’ Construction Manager) directed Mr Shirtcliff to undertake the unauthorised works or otherwise advised Mr Shirtcliff that the works were permitted. This allegation is based on the content of Mr Shirtcliff’s witness statement and the intention to call Mr Shirtcliff as a prosecution witness in the event that this matter proceeds to trial.
3.Regardless of any direction or authorisation from Mr Seychell and/or Mr Ewers, the Council considers that Fulton Hogan remains liable for the offence committed in any event.
4.It is obviously open to your client to contest the above should the matter proceed to trial or to attempt to settle an agreed summary of facts should there be a change of plea.
The relevant RMA criminal liability provisions
[14] As set out at [5] above, the charging documents referred to ss 13(1)(b), 14(2)(a), 338(1)(a) and 339(1)(b) RMA.
[15] Section 339(1)(b) specifies the available penalty on sentencing as a fine not exceeding $600,000.
[16] Sections 13(1)(b) and 14(2)(a) are the relevant RMA provisions restricting respectively the excavation or other disturbance of a riverbed and the diversion of water.
[17] The remaining provision referred to in the charging documents, s 338 RMA, provides:
338 Offences against this Act
(1)Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:
(a)sections 9, 11, 12, 13, 14, and 15 (which impose duties and restrictions in relation to land, subdivision, the coastal marine area, the beds of certain rivers and lakes, water, and discharges of contaminants):
…
(4) Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against subsection (1), (1A), or (1B) ends on the date that is 6 months after the date on which the contravention giving rise to the charge first became known, or should have become known, to the local authority or consent authority.
[18] The Council here has confirmed by counsel’s memorandum that it is alleging that Fulton Hogan is vicariously liable for the offences committed by Taylors, pursuant to s 340(1)(a) RMA.
[19]Section 340 provides:
340 Liability of principal for acts of agents
(1)Where an offence is committed against this Act—
(a)by any person acting as the agent (including any contractor) or employee of another person, that other person shall, without prejudice to the liability of the first-mentioned person, be liable under this Act in the same manner and to the same extent as if he, she, or it had personally committed the offence; or
(b)by any person while in charge of a ship, the owner of the ship shall, without prejudice to the liability of the first-mentioned person, be liable under this Act in the same manner and to the same extent as if he, she, or it had personally committed the offence.
(2)Despite anything in subsection (1), if proceedings are brought under that subsection, it is a good defence if—
(a)the defendant proves,—
(i)in the case of a natural person (including a partner in a firm),—
(A)that he or she did not know, and could not reasonably be expected to have known, that the offence was to be or was being committed; or
(B)that he or she took all reasonable steps to prevent the commission of the offence; or
in the case of a person other than a natural person,—
(A)that neither the directors (if any) nor any person involved in the management of the
defendant knew, or could reasonably be expected to have known, that the offence was to be or was being committed; or
(B)that the defendant took all reasonable steps to prevent the commission of the offence; and
(b)the defendant proves that the defendant took all reasonable steps to remedy any effects of the act or omission giving rise to the offence.
(3)If a person other than a natural person is convicted of an offence against this Act, a director of the defendant (if any), or a person involved in the management of the defendant, is guilty of the same offence if it is proved—
(a)that the act or omission that constituted the offence took place with his or her authority, permission, or consent; and
(b)that he or she knew, or could reasonably be expected to have known, that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
The statutory framework in relation to dismissal of charges
[20] In the District Court, Fulton Hogan invoked s 147 CPA, which provides that the court may dismiss a charge prior to trial, if (amongst other situations) satisfied that there is no case to answer.
[21]The s 147 dismissal power is subject to s 379 CPA which provides:
379 Proceedings not to be questioned for want of form
No charging document, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding may be dismissed, set aside, or held invalid by any court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.
[22] Fulton Hogan’s position is that the two charges offend ss 16 and 17 CPA. Section 16 requires that charging documents “must include … particulars of the charge that satisfy the requirements of s 17”.4 Section 17 CPA deals with the content of a charge. Fulton Hogan relies on s 17(4) and (5) which provide:
4 Criminal Procedure Act 2011, s 16(2)(d).
17 Content of charge
…
(4)A charge must contain sufficient particulars to fully and fairly inform the defendant of the substance of the offence that it is alleged that the defendant has committed.
(5)Without limiting subsection (4), the particulars provided under that subsection must include—
(a)a reference to a provision of an enactment creating the offence that it is alleged that the defendant has committed;
…
[23] Fulton Hogan also invokes s 24(a) New Zealand Bill of Rights Act 1990 (NZBORA) which provides:
24 Rights of persons charged
Everyone who is charged with an offence—
(a) shall be informed promptly and in detail of the nature and cause of the charge…
[24] The CPA relevantly contains two sets of provisions which empower the court to require further particulars or amend charges as follows:
18 Court may order further particulars
(1)A court may, if satisfied that it is necessary for a fair trial, order that further particulars of any document, person, thing, or any other matter relevant to setting out the charge against the defendant be provided by the prosecutor.
(2)Nothing in subsection (1) limits the power of a court under section 133.
…
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.
The judgment of the District Court
[25] Judge Hassan addressed the issues raised by Fulton Hogan’s application under a number of headings, which I adopt.
AWhat does s 17(4) CPA require as to the substance of a charging document?
[26]Judge Hassan found:
(a)Section 17(4) CPA is in terms of its language “imperative” and is in the nature of an “overriding test”.5
(b)Section 17(4) requires proper particularity of both the legal and factual basis of the alleged liability.6
(c)It is the substance, the essence or the pith of the charge, which must be revealed by the particulars, not the details relied upon to establish the charge.7
(d)The defendant is entitled to know, with all available particularity the substance of that with which they are charged.8
(e)Section 17 does not intend that charging documents reflect the civil standard of pleading but, rather, rejects undue formality in pleading criminal cases.9
(f)Section 17(4) is not to be read with a gloss that prohibits the prosecutor from alleging a general offence “without specifying when and in what
5 District Court judgment at [8] and [11].
6 District Court judgment at [8].
7 District Court judgment at [8], adopting Police v Wyatt [1966] NZLR 1118 (SC) at 1133.
8 District Court judgment at [9], adopting Gamble v R [2012] NZCA 91 at [31].
9 District Court judgment at [10], adopting Police v Wyatt, above n 7, at 1133 – 1134.
manner the defendant engaged in conduct amounting to the actus reus of the offence”.10
(g)An application for dismissal must critically depend on what renders a charge a “nullity” and how s 379 CPA is to be applied.11
BWhen is a charging document a “nullity” and what does s 379 CPA require?
[27]Judge Hassan found:
(a)The leading and guiding authority on these issues is the judgment of the majority in the Supreme Court decision in Dotcom v Attorney- General (dealing with s 204 Summary Proceedings Act 1957, a provision which is materially the same as s 379 CPA), and in particular the following passage:12
In summary, the authorities to date have held that full effect should be given to the ordinary and natural meaning of the language of s 204. The authorities accept that some defects are so serious that the document or process concerned must be treated as a nullity and outside the scope of s 204, this conclusion is one which courts should be slow to reach. The court’s approach should not be a technical or mechanical one, and even relatively serious defects may receive the protection of s 204. Where a court concludes that the relevant document or process is not a nullity on account of the particular defect(s), the question whether s 204’s protective effect is available depends on whether that will involve a miscarriage of justice. That will be determined by whether or not the particular defect has caused significant prejudice to the person affected. In considering whether there is such prejudice, where defects on the face of a search warrant are alleged, the court is entitled to have regard to the context or surrounding circumstances to see whether they alleviate the potential effect of any such deficiencies or whether prejudice remains.
(b)Applying Dotcom, the Court must be slow to reach a conclusion that a document is a nullity, the overriding principle being to avoid analysing a charging document in an overly technical or mechanical way.
10 District Court judgment at [13].
11 District Court judgment at [11].
12 Dotcom v Attorney-General [2014] NZSC 199, [2015] NZLR 745 at [129].
(c)The saving provisions of s 379 CPA are not confined to only technical violations or defects in form but can address defects of substance.13
(d)Applying Dotcom, the “miscarriage of justice” referred to in s 379 CPA:
(i)is to be determined by whether or not the particular defective has caused significant prejudice to the defendant; and
(ii)can be determined having regard to the context or surrounding circumstances.14
What amendments are permissible outside a limitation period
[28] Judge Hassan referred to the six-month limitation period under s 338(4) RMA for the laying of charges, which had expired shortly after the two charges in this case were laid.15 The implications of the limitation period were not explored in the District Court judgment as his Honour ultimately found that the two charges did not need to be amended.
Does the RMA specify a self-contained “vicarious” head of liability in s 340?
[29] Fulton Hogan had submitted that s 340(1) RMA is a stand-alone head of vicarious liability and that, because the charging documents failed to allege such liability or refer to s 340, they contravene ss 16 and 17 CPA. For Fulton Hogan, Mr Eaton had also submitted that the defence contained in s 340(2) CPA is available to the defendant only if the prosecution chooses to bring the proceedings on the basis of s 340(1) vicarious liability.
[30]Judge Hassan found:
13 District Court judgment at [22].
14 District Court judgment at [22], referring to Stewart v Police [2013] NZHC 2846 at [25].
15 District Court judgment at [23].
(a)only s 338 RMA specifies RMA offences, as indicated by the cross- referencing solely to s 338 in ss 338(4), 339, 339B, 339C, 341 and 342.16
(b)Section 340 RMA is not a self-contained offence or vicarious liability provision.17 The provisions of s 340 RMA are to be distinguished from the provisions of s 246(3) Fisheries Act 1996, as discussed by the Court of Appeal in D’Esposito v Ministry for Primary Industries.18 The Court of Appeal held that the reference in s 246(3) Fisheries Act to an “offence against this section” disposed of the need to convict or even charge the Body Corporate with the predicate offence.19 The Court of Appeal observed that “[t]hat wording could hardly be clearer” – it found the wording to be “decisive and unambiguous”.20
(c)The role of s 340 RMA is to operate in tandem with s 338 RMA, to some extent supplementing the offences specified in s 338.21
(d)Section 340(1)(a) operates to impute liability to a principal or employer for the contravening acts of their agent (including a contractor or employee).22
(e)The reference in s 340(2) RMA to “proceedings … brought under [subs (1)]” is that the s 340(2) defences apply whenever vicarious liability is imputed simply by operation of s 340(1) and the defences are not limited to circumstances in which vicarious liability is explicitly alleged in the charging documents.23
16 District Court judgment at [44].
17 District Court judgment at [45].
18 D’Esposito v Ministry for Primary Industries [2018] NZCA 9, [2018] NZAR 388.
19 At [29] (emphasis added).
20 At [29].
21 District Court judgment at [45], [46] and [51].
22 District Court judgment at [46].
23 District Court judgment at [48] – [49].
(f)The defences specified in s 340(2) RMA are available to a defendant whether or not vicarious liability is explicitly alleged in the charging documents.24
(g)Without expressing any broader view of the decision of Judge J A Smith in Southland Regional Council v Sandstone Dairy Limited, Judge Hassan observed that Judge Smith’s conclusion – that s 340 does not supplement the s 338 offences – is materially similar to Judge Hassan’s construction of the Act.25
(h)Both primary offenders and vicarious co-defendants may be charged in the same terms for the same contravention.26
Application of the law to the facts
[31] Judge Hassan, having identified the legal principles to be applied, recited the submissions of counsel as to the charging documents before stating his conclusions. I now set out the relevant part of those conclusions:
[85]For the following reasons, I find that the charging documents:
(a)are not a nullity; and
(b)comply with s 17(4) CPA except in one minor respect readily able to be remedied on a basis that would not constitute a miscarriage of justice or endorsement of any abuse of process.
[86]As presently framed, the charging documents fully and fairly inform Fulton Hogan of the substance of the alleged acts that constitute the offences, specifically as to what is alleged to have occurred, when and where, namely:
(a)unauthorised excavating or otherwise disturbing of the Kowai River bed, at the Kowai River, Canterbury, on or about 21 April 2017; and
24 District Court judgment at [51].
25 District Court judgment at [53], referring to Southland Regional District v Sandstone Dairy Ltd DC Invercargill CRN 0601750043, 14 December 2006 at [32]: “section 340 does not provide in itself a separate ground for prosecution in addition to section 338”. An appeal against the District Court judgment as to convictions was dismissed: Sandstone Dairy Ltd v Southland Regional Council HC Invercargill CRI-2007-425-1, 15 May 2007.
26 District Court judgment at [54].
(b)unauthorised diverting of water of the Kowai River, at Kowai River, Canterbury, between 21 and 27 April 2017.
[87]The charging documents are accurate insofar as they also disclose the legal basis of alleged liability under the RMA, namely in specifying:
(a)s 338(1)(a) as the offence provision;
(b)ss 13(1)(b) and 14(2)(a) as the relevant provisions contravened;
(c)the fact that contravention rather than permitting a contravention is alleged; and
(d)the fact that the alleged contravention arises through a failure to be expressly allowed to undertake the alleged contravening acts under relevant RMA instruments.
[88]The charging documents do not disclose either that Fulton Hogan is charged in its vicarious capacity or which co-offender’s offences are alleged to be imputed to it.
[89]However, in the particular circumstances here, I am satisfied that this gap falls well short of rendering the charging documents a nullity. Specifically, that is because of the following:
(a)The charging documents fully and fairly disclose the substance of the alleged acts that constitute the offences and disclose the legal basis of alleged liability. I accept the Council’s submissions that an offence involving acts is materially different from one of omission as was in issue in Talley’s (as Faire J recognised at [47] of that decision).
(b)The effect of s 340(1), as a matter of law, is to impute to a principal or employer criminal liability under the RMA for the offence of a person acting as their agent or employee, without prejudice to the liability of that agent or employee, in the same manner and to the same extent as if he, she, or it had personally committed the offence.
(c)The charging documents only leave open two real possibilities in the circumstances, namely that Fulton Hogan is either:
(i)supposed to have done the contravening acts itself (albeit as a body corporate); or
(ii)supposed to be the principal imputed with vicarious responsibility for another offender’s contravention.
(d)The extent of uncertainty associated with that lack of clarity in the charging documents is lessened by what can be reasonably inferred to have been known to Fulton Hogan, in the circumstances. Fulton Hogan would have known it held a resource consent (CRC 166199) to excavate and disturb the Kowai River bed. It would have known it is in the business of gravel extraction. It may well not have known that Taylors was a co-defendant (and I understand it was not served with copies of the charging documents that were served on Taylors). However, it would have been in a position to conclude in the context that the charges pertained to activities it was presumed to have
relevant association with in relation to the Kowai River and on and between the specified dates.
(e)In any case, the non-disclosure of the alleged vicarious liability for Taylors’ offending does not give rise to any substantial prejudice. Firstly, given that Taylors faced identically framed charges, the substance of the alleged offence remains unchanged. It is not a case of a ‘new misdoing’ alleged after the expiry of the statutory limitation period. Secondly, insofar as vicarious liability for Taylors’ offending bears on how Fulton Hogan may approach the framing of a s 340(2) defence, the temporary non-disclosure does not prejudice Fulton Hogan’s capacity to run such a defence. There is ample time for it to prepare related evidence before trial.
[90]Therefore, I do not accept Fulton Hogan’s characterisation of the charging documents as failing to describe an offence or its necessary elements. I am satisfied that, in a substantive sense, the documents are sufficiently informative, with appropriate particularity, of what Fulton Hogan is charged with. Despite a degree of non-disclosure in the charging documents, they reveal the essential substance or pith of the alleged offending.
[91]Guided by the majority decision Dotcom, for the reasons I have given, I find that it would be unduly technical and mechanical to treat the charging documents as a nullity by reason of their non-disclosure of vicarious liability. For the same reasons, I also find that s 379 applies to the effect that I am not to dismiss, set aside, or hold the charging documents as invalid by reason of their omission of reference to vicarious liability. That is, I am satisfied that the omission had not caused Fulton Hogan significant prejudice such as to give rise to a miscarriage of justice.
[92]I record that those findings are not contingent on the further information disclosed in the Council’s Summary of Facts. Rather, they are for the reasons I have set out. Having said that, I also record that I find the Summary of Facts, provided to Fulton Hogan a few weeks after the charging documents were served, is materially consistent with the Council’s intention that Fulton Hogan is charged by reason of its alleged vicarious liability for Taylor’s offending contraventions. Specifically, that is the tenor of its following statements:
2.2Fulton Hogan looked to extract suitable gravel materials from a nearby consented site on the Kowai River (the Kowai site). …
2.3Fulton Hogan holds resource consent CRC166199 (the Resource Consent) which provides for Fulton Hogan to excavate and deposit gravel, sand and other natural material and to disturb the bed of the Kowai River.
2.7 On 12 April 2017 Fulton Hogan advised Canterbury Regional Council (the Council) by email that gravel take would recommence over a three month period from 13 April 2017 at the Kowai site and that Taylors would be carrying out the work for Fulton Hogan.
[93]For completeness, I agree with the Council that paragraph 5.2 (which Fulton Hogan submitted to allege a different “permitting a contravention” liability) is properly read as a response to what the preceding paragraph 5.1 alleges as Fulton Hogan’s explanation.
[94]Furthermore, I agree with the Council that a relevant factor in the mix, when considering miscarriage of justice, is the timing of any amendment, or further particularisation of charges, relative to the date of the trial. In terms of that factor, it is fair to observe that Fulton Hogan has ample time to prepare its case for trial in light of my findings in this decision. Having said that, I record that my findings that there is no substantial prejudice and miscarriage of justice are not sensitive to this matter of timing. Rather, for the other reasons I have given, I find that s 379 clearly neither allows nor requires the charges to be dismissed nor precludes the making of any order under ss 18 or 133 CPA.
[95]Therefore, I decline Fulton Hogan’s application and determine that I have jurisdiction to exercise the discretions in ss 18 and 133.
[96]My exercise of those discretions is not solely informed by my findings in declining Fulton Hogan’s application. Rather, s 18 refers to a broader test of “necessary for a fair trial” and clearly my overriding duty is to uphold the interests of justice.
[97]Having regard to those matters, I find that amendment of the charges is unnecessary. Therefore, the need to consider the limitation period does not arise. For completeness, I record that an amendment such as to make vicarious liability explicit would be of a technical nature. It would not constitute a new “misdoing” given the substance of the alleged contravention would be unchanged. Nor would it have any material bearing on the availability of relevant defences. Hence, it would not offend the principles in Holt and the English authorities cited.
[98]As for s 18 CPA, I am satisfied that the Council is well aware that it is only entitled to make a case that Fulton Hogan is liable in a vicarious capacity and only in respect of the offences committed by Taylors. Associated with that, I am also satisfied that the Council is aware that this means it bears an associated burden of proving the requisite agency relationship beyond reasonable doubt. However, only in the interests of transparency, I consider it necessary for the Council to confirm formally its understanding of those matters by memorandum. Therefore, I have made an order under s 18 CPA.
Fulton Hogan’s question of law
[32]The five questions of law on which Fulton Hogan sought leave to appeal were:
Question 1
Was the judge correct to conclude that the charging documents were not nullities and that s 379 CPA could save the charging documents from dismissal or otherwise being held invalid?
Question 2
Was the judge correct to conclude that the charging documents were compliant with s 17 CPA except in one minor respect?
Question 3
Was the judge correct to conclude that the provision of further particulars pursuant to s 18 CPA can remedy a charging document that does not comply with s 17 CPA?
Question 4
Was the judge correct to conclude that the words “proceeding brought under” that subsection within s 340(2) RMA do not require the charging documents to reference liability pursuant to s 340(1) RMA?
Question 5
Was the judge correct to conclude that s 340 RMA did not create a distinct offence provision?
Fulton Hogan’s right of appeal
[33] Section 296 CPA entitles Fulton Hogan, with leave of the High Court, to appeal on a question of law against the rulings of the District Court.27
[34] Fulton Hogan’s leave application identified the five particular questions set out at [33] above.28 The High Court, as the first appeal Court in this case, has the power to amend the questions stated, s 299 CPA providing:
27 Criminal Procedure Act 2011, ss 296(1) – (3) and 297(1)(b).
28 Criminal Procedure Act 2011, s 298(2).
299 Power of first appeal court to amend question stated
The first appeal court may, at any time before determining an appeal under this subpart, amend or restate any question of law to be determined in the appeal if it considers it necessary or desirable to do so.
Ruling on leave
[35] The Council has not opposed the application for leave although Mr Shaw, for the Council, has invited the Court, before determining the appeal, to amend or restate questions 1 and 4. Subject to amendments which I find to be both necessary and desirable, leave to appeal on questions of law will be granted to Fulton Hogan in relation to questions 2, 3 and 4.
[36] In his synopsis filed for Fulton Hogan before the hearing, Mr Eaton withdrew the application for leave in relation to questions 1 and 5. In the circumstances, the leave application will be treated as withdrawn in those regards.
Questions 2 and 4
Approached jointly
[37] I approach questions 2 and 4 together. Their subject-matter lends themselves to such discussion as recognised in the submissions of both Mr Eaton and Mr Shaw.
Amendment or restatement of question 4
[38] Pursuant to s 299 CPA, I consider it necessary and desirable to restate question 4, in line with submissions made by Mr Shaw. As he submitted, the reasoning of Judge Hassan which led to the conclusion that the charging documents are not required to reference liability pursuant to s 340(1) RMA did not turn on the single consideration identified in the question as framed by Fulton Hogan. For the Council, Mr Shaw invited the Court to restate the question in this way:
Was the Judge correct to conclude that it was not necessary for the charging documents to reference s 340(1) in order for vicarious liability to be relied upon or for the defence under s 340(2) to be available?
[39] Judge Hassan expressly declined to accept Fulton Hogan’s interpretation that the defences in s 340(2) are available only if vicarious liability under s 340(1) is alleged in the charging documents.29
[40] The questions sought to be pursued by Fulton Hogan by way of appeal do not identify or invite reconsideration of that finding, but Mr Eaton in his submissions challenged that finding also. I find it is necessary and desirable that question 4 be restated in the form proposed by Mr Shaw (above at [38]).
Submissions for Fulton Hogan
[41] Mr Eaton submitted that Judge Hassan erred in not finding the charging documents to be “deficient” in this case. Mr Eaton submitted that the charging documents are deficient because they do not:
(a)refer to s 340 RMA;
(b)include any particulars giving rise to vicarious liability; or
(c)particularise the acts or omissions of Fulton Hogan said to give rise to a breach of the RMA.
[42] Mr Eaton commenced the relevant part of his submissions (in relation to questions 2 and 4) with an overarching submission which challenged Judge Hassan’s finding30 that the charging documents comply with s 17(4) CPA “except in one minor respect”.
[43] Mr Eaton observed that the charging documents were either compliant or non- compliant with s 17(4). As, in his submission, there was a non-compliance with s 17(4), the consequence of the District Court reasoning was that the Judge failed to properly address the question of “remedy”.
29 The District Court judgment at [47].
30 At [85], above at [31].
[44] Against that background, Mr Eaton identified what he submitted were the two omissions from the charging documents.
[45] First, Mr Eaton submits that vicarious liability is not imputed by operation of s 340(1) RMA (as held by Judge Hassan at [89](b)) but, rather, is advanced by a prosecutor as a distinct basis of liability. As such, s 17(5) CPA would require s 340(1) (as the provision which creates the offence) to be referred to in the charging documents.
[46] Mr Eaton further submitted that the defences made available to principals under s 340 RMA are available if and only if proceedings are brought under that specific provision. In his submission this provides a very strong indicator that the charging documents must make it very clear that the relevant provisions are triggered meaning by express reference to s 340 in the charging documents. Mr Eaton submitted that Judge Hassan erred by failing to apply the Court of Appeal’s decision in D’Esposito (in which s 246 Fisheries Act was found to create a stand-alone offence) to the interpretation of s 340 RMA.31 Mr Eaton submitted that the s 340(2) words – “if proceedings are brought under that sub-section” – must have an equivalent meaning to the provision in s 246 of the Fisheries Act 1996. Accordingly, in Mr Eaton’s submission, the charging documents were defective by not referring to s 340 RMA.
[47] Mr Eaton further submitted that the Council’s failure to refer to vicarious liability in the charging documents meant that they did not comply with s 17(4) CPA. I did not understand Mr Eaton to posit a particular form of wording which in his submission would have been compliant but I infer from his written synopsis (particularly at paragraph [69]) that a reference to Fulton Hogan having been charged “upon the basis of vicarious liability” would have been accepted as sufficient.
[48] Mr Eaton submitted that the failure of the Council in this case to expressly refer to vicarious liability and thereby to lay a charge expressed in more general language stems from a practice – criticised by the Court of Appeal in Talley’s Group Ltd v Worksafe New Zealand – which is adopted in order to allow the prosecutor to shape
31 Above n 18.
the legal and factual basis of the charge at some later date.32 He submitted that Judge Hassan had (incorrectly) approached the issue of s 4 compliance upon an assumption that the Council’s position was always that it could and would only advance a case alleging vicarious liability, with the consequence that when the Judge ordered the provision of further particulars, such were required only as a matter of “transparency”.
[49] Mr Eaton then turned to the ensuing Council memorandum and the correspondence between solicitors in this case. He submitted that those documents contradict the proposition that the Council’s case is based only on vicarious liability. Mr Eaton construes the exchange of correspondence to indicate that the Council’s primary case is based on a direction by Fulton Hogan to Mr Shirtcliff (constituting direct liability under s 66 Crimes Act 1961) or permission to Mr Shirtcliff (“indirect” rather than vicarious liability). On this basis, Mr Eaton submits that Fulton Hogan will be deprived of the statutory defences to a vicarious liability prosecution.
[50] Accordingly, Mr Eaton submitted that the answers to questions 2 and 4 are “no”.
Submissions for Council
[51] Mr Shaw, for the Council, supported the findings of Judge Hassan (which give rise to questions 2 and 4) by reference to the reasoning within the District Court judgment.
[52] Mr Shaw first submits that the District Court correctly concluded that s 340 RMA does not contain a self-contained offence or vicarious liability provision.33
[53] Similarly, in his submission, the Court was correct to find that s 340(1)(a) operates to impute liability to a principal or employer for the contravening acts of their agent (including a contractor or employee).34
32 Talley’s Group Ltd v Worksafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198. The Court of Appeal, at [84] – [85] distinguished between cases of flawed charging practices unremarked upon by trial courts for some time where (1) the prosecutor does not realise the impermissibility and (2) the prosecutor is aware, and proceeds in actual bad faith. Leave to appeal to the Supreme Court was refused: [2019] NZSC 37.
33 Above at [30](b).
34 Above at [30](d).
[54] In construing the offence-creating provisions of the RMA, Judge Hassan had placed particular reliance upon the regime whereby “offences against this Act” are identified in s 338 and all the cross-references to “offences” are consistently to offences against s 338. Those cross-references are contained, as identified by Judge Hassan, in ss 338(4), 339, 339B, 339C, 341 and 342.
[55] Mr Shaw submitted that there are further aspects of the legislation which serve to confirm that Judge Hassan’s construction of s 340 was correct:
(a)The reference in s 340(1) to the principal being liable “in the same manner and to the same extent as if he, she, or it had personally committed the offence” indicates that the legislation contemplates a single offence, that is the same offence is committed by each defendant.
(b)If Fulton Hogan’s construction were correct with the result that a defendant commits a s 340 offence, there would be no penalty identified in the legislation for such offence.
(c)Similarly, the limitation provision in s 338(4), specifically included for offences, would not apply to a “s 340 offence” with the result that the s 340 offence would attract the standard CPA limitation period.
Discussion
[56] Before turning to discuss questions 2 and 4, it is appropriate to consider the way in which an offence under part 12 of the RMA is created when liability is imputed to a principal for the acts of agents.
[57] The single, reasonable interpretation of part 12 is that the relevant offence is created under s 338. Judge Hassan’s reasoning in this regard (summarised at [30] above) identifies that s 340 RMA is not a self-contained offence. As referenced by Judge Hassan (without the point being spelt out in his Honour’s judgment), it is the provisions of s 339 alone which provide penalties for offences under part 12 of the RMA. Those provisions do not identify any penalty in relation to s 340. There is no reason to believe that Parliament intended to create a stand-alone offence under s 340
but then overlooked the need to provide a correlative penalty. One should examine the organisation and format of part 12, including the heading of s 338 itself.35 Examined thus, the penalty provisions in s 339, accounting for each of the offences created by s 338, are reasonably to be taken as covering each situation of liability under part 12.36
[58] This interpretation of ss 338 to 340 is not undermined by the s 340(2) words “if proceedings are brought under that subsection [340(1)]”. On the basis of that reference to proceedings being “brought under” the vicarious liability provisions of s 340(1), Mr Eaton invites the Court to conclude that Parliament intended to create a stand-alone vicarious liability offence under s 340 itself.
[59] Mr Eaton draws support from the Court of Appeal judgment in D’Esposito, the Court there finding that the reference in s 246(3) Fisheries Act 1996 to an offence “against this section” (emphasis added) involved the creation of a distinct offence in s 246.
[60] In finding the interpretation of s 246(3) Fisheries Act 1996 in D’Esposito to be inapplicable to s 340 RMA, Judge Hassan distinguished the provisions of the Fisheries Act which were considered in D’Esposito.
[61] The Judge was correct to do so. Section 246(3) Fisheries Act 1996 expressly stipulates that a Body Corporate “commits an offence” in given circumstances, in direct parallel with the neighbouring offence provisions in ss 228 – 235 which refer to the commission of “an offence”.37
[62] The substantially different wording of s 340(2) RMA – “if proceedings are brought under that subsection [s 340(1)]” – does not directly describe the creation of an offence. The words used in s 340(2), standing alone, might be there as one possible interpretation a recognition that an offence is created under s 340(1), but such an
35 Interpretation Act 1999, s 5(3).
36 Interpretation Act, s 5(3).
37 D’Esposito, above n 18, at [25].
interpretation cannot stand when the provisions in the Act are interpreted in their full context, including the surrounding provisions.
[63] It was appropriate that Fulton Hogan withdrew its application for leave to appeal on its proposed question 5.
[64] It is accordingly the starting point for consideration of Fulton Hogan’s remaining questions that Judge Hassan correctly concluded that s 340 RMA does not create a distinct offence provision. Section 338(1)(a) RMA is correctly identified in both charging documents, as it is the offence-creating provision.
[65] Fulton Hogan’s question 4 nevertheless invites this Court to find that the Council, if intending to assert Fulton Hogan’s vicarious liability under s 340, is required to expressly refer to s 340 in the charging documents. Otherwise, submits Mr Eaton, the defences made available to principals under s 340 RMA are unavailable to the defendant. In other words, Fulton Hogan would be denied the right to raise the defences referred to in s 340(2) RMA if the charging documents do not refer to s 340 RMA. Mr Eaton submits that proceedings are not “brought under that subsection [s 340(1)]” unless the charging document expressly refers to s 340.
[66] Judge Hassan recognised Mr Eaton’s proffered interpretation as one possible reading of s 340 but observed that it was not the only available interpretation on a plain reading of the provision.38 His Honour continued:39
Another possible meaning of the words is that the s340(2) offences apply whenever vicarious liability is imputed simply by operation of s340(1). That interpretation does not require vicarious liability to be explicitly alleged in the charging document. Mindful of the observation of Kós P in D’Esposito, I find that construction more consistent with liberty than that put by Fulton Hogan. That is particularly in the fact that a defendant would not be denied the defences under s340(2) simply by reason that the charging document does not reference s340 and/or vicarious liability.
[67] Mr Eaton challenges that conclusion at two levels. He rejects Judge Hassan’s conclusion that a number of readings of s 340(2) may be possible, submitting that there is only one meaning available on a plain reading, namely that s 340(1) vicarious
38 District Court judgment at [48].
39 District Court judgment at [49].
liability must be referenced in the charging documents. Secondly, Mr Eaton submits that if s 340(2) is interpreted to allow s 340(2) defences to apply “whenever vicarious liability is imputed simply by operation of s 340(1)” is to render the words “if proceedings are brought under that subsection” nugatory.
[68] I do not consider Mr Eaton’s submissions in this regard compelling. The expression “proceedings brought under that subsection” are plainly capable of more than one meaning. The meaning identified by Judge Hassan is that which makes most sense. It is improbable that Parliament would have intended that the availability of defences to a particular charge under s 338 would depend upon the prosecutor’s inclusion of an express reference to s 340 (or vicarious liability) in the charging document. The availability of the defences to all those corporations against whom liability is sought to be imputed on the basis of vicarious liability serves to give the statutory defences a universal application. This would otherwise be arbitrarily limited not by reference to the substance of the prosecution but by the happenstance of a charging document.
[69]Fulton Hogan’s question 4 is answered in the positive.
Question 2
[70] Question 2 does not require amendment or restatement. It thus stands unamended:
Was the Judge correct to conclude that the charging documents were compliant with s 17 CPA except in one minor respect?
[71] The passages in the District Court judgment to which question 2 most closely relates are:
(a)At [85](b), where Judge Hassan found that the charging documents:
…comply with s17(4) CPA except in one minor respect readily able to be remedied on a basis that would not constitute a miscarriage of justice or endorsement of any abuse of process.
(b)At [90], where Judge Hassan states:
I am satisfied that, in a substantive sense, the documents are sufficiently informative, with appropriate particularity, of what Fulton Hogan is charged with. Despite a degree of non-disclosure in the charging documents, they reveal the essential substance or pith of the alleged offending.
Submissions for Fulton Hogan
[72] It is apparent from the District Court judgment that Mr Eaton’s submissions in this Court as to the requirements of s 17(4) CPA closely follow his submissions in the District Court, those submissions being summarised in the District Court judgment from [8].
[73] Mr Eaton described as well-established the applicable principles as identified by this Court (in relation to the Summary Proceedings Act) in Police v Wyatt.40 It was there stated by McCarthy J, delivering one of the three unanimous judgments of the Court:
…sufficient particulars must be given… Obviously the degree of particularity needed to inform a person adequately of the substance of a charge must vary according to the nature of the offence. I point out that it is the substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied upon to establish the charge. It will, I think, be readily apparent that in some cases only a few particulars will be necessary to convey the substance. In others, especially where the offence is a complex one, such as it was for example in Robertson v. Rosenberg (1951) 67 T.L.R. 417, and in Stephenson v. Johnson [1954] 1 W.L.R. 375 ; [1954] I All E.R. 369, more will be required.
[74] Mr Eaton, continuing, submitted that the “substance, essence or pith of the charge” is communicated to the defendant only when its particular act or omission and the transaction in which it is occurred is identified”. He submitted that it is insufficient to allege a general offence without specifying when and in what manner the defendant engaged in conduct amounting to the actus reus of the offence.
[75] Moving beyond a suggested requirement to expressly refer to s 340 RMA or to the concept of vicarious liability (which I have discussed above), Mr Eaton submitted that the charging documents in this case fail to meet the requirements of s 17 CPA
40 Police v Wyatt [1966] NZLR 1118 (CA) at 1133.
because the charging documents do not “particularise the acts or omissions of Fulton Hogan which the prosecutor alleges give rise to a breach of the RMA”.
[76] Mr Eaton submitted that, with the charges as framed in the present case, a legal advisor to Fulton Hogan and any Court viewing the charging document would inevitably ask:
How is it that Fulton Hogan is alleged to have contravened ss 13 and 14 of the RMA?
Submissions for Council
[77] Mr Shaw, for the Council, placed similar emphasis upon the judgments of the Court of Appeal in Police v Wyatt.41
[78] Mr Shaw identified what he submitted are four principles which emerge from a consideration of the relevant authorities:
(a)The degree of particularity required to inform a defendant adequately of the substance of the offence alleged against them varies according to the nature of the offence. In some cases, only a few particulars will be necessary to convey the substance, whereas in others, (especially involving complex offences) further particulars will be required.42
(b)It is the “substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied on to establish the charge”.43
(c)The civil standard of pleading is not appropriate in a criminal case.44 Part of the purpose behind s 17 and its predecessor provisions is to maintain the rejection of formality and pleading criminal cases – hence the requirement that the substance of the offence be particularised.45
41 Police v Wyatt, above n 40, at 1133.
42 Citing Police v Wyatt, above n 40, at 1133.
43 Citing Police v Wyatt, above n 40, at 1133.
44 Auckland Regional Council v URS New Zealand Ltd [2009] DCR 227 at [14].
45 Police v Wyatt, above n 40, at 1133 – 1134.
(d)The focus of s 17(4) is on a defendant being fully and fairly informed of the case against them, not on setting hard and fast rules where any failure to adhere to such rules is fatal to the prosecution.46 Indeed, despite the number of authorities traversed, Fulton Hogan has not identified any comparable decision where the outcome ultimately sought (dismissal of the charges) has followed a finding of deficiency under s 17(4) (or equivalent rules of law).47
(e)Unless particularisation may be required where the offence alleged consists of an act rather than an omission.48
Discussion
[79] Mr Eaton did not challenge Judge Hassan’s conclusion as to the accuracy of the charging documents in identifying three legal bases of alleged liability under the RMA (leaving aside the offence provision itself), and in particular –
(a)the relevant provisions contravened, namely ss 13(1)(b) and 14(2)(a);
(b)the fact that contravention rather than permitting a contravention is alleged; and
(c)the fact that the alleged contravention arises through a failure to be expressly allowed to take the alleged contravening acts under the relevant RMA instruments.49
[80] It is clear from the District Court judgment that Judge Hassan focused his consideration (as required by the Court of Appeal in Police v Wyatt) on the “substance, essence or pith, of the charge”.50
[81] The acts or omissions alleged by the prosecutor in this case to constitute offences are respectively set out in the two charging documents. That this is so in a case where the prosecutor relies upon a principal’s vicarious liability under s 340 RMA
46 Auckland Regional Council v URS NZ Ltd, above n 44, at [20]; Police v Wyatt, above n 40, at 1133.
47 This point having been noted in the District Court judgment at [73] and [81].
48 Worksafe New Zealand v Talley’s Group Ltd [2017] NZHC 1103, (2017) 14 NZELR 584 at [47] (judgment upheld in Talley’s Group Ltd v Worksafe New Zealand, above n 32).
49 District Court judgment at [87].
50 This is particularly clear in the District Court judgment at [90].
is reinforced by the terminology of s 340(1)(a) itself which renders the principal liable “in the same manner and to the same extent as if he, she, or it had personally committed the offence”. In short, it is the same offence whether committed by the agent or employee on the one hand or the principal on the other. The substance of the offence
– that which is required by s 17(4) CPA to be fully and fairly particularised, is the same.
[82] In determining whether a defendant has been fully and fairly informed of the substance of an alleged offence, the Court is not undertaking an exercise in the abstract. That point is clearly made in the judgments of the Court of Appeal in Police v Wyatt. In that case, the Court of Appeal allowed an appeal from a Supreme Court judgment. The defendant had been charged in the Magistrate’s Court with causing bodily injury by carelessly using a motor vehicle and with driving a motor vehicle in a manner which was or might have been dangerous to the public. In applying the test under s 17 of the Summary Proceedings Act 1957, Wilson J (in the then Supreme Court) held that a defendant is not fairly informed of the substance of an offence if the charging document (in that case an information) uses “such vague terms” as “carelessly using” a motor vehicle or “driving a motor vehicle in a manner which, in all the circumstances of the case, might be dangerous to the public”.
[83] The Court of Appeal unanimously allowed the appeal. Counsel for the Police is recorded as having made this submission:51
Section 17 cannot be looked at in vacuuo. The person who must be fairly informed of the substance of the charge is the defendant, not the world at large, and it must, generally speaking, be accepted that he is not wholly ignorant of the matter, otherwise the information would need to contain a great deal of factual material before the defendant could be said to be fairly informed.
[84] While the Court of Appeal did not directly adopt that submission, it was accepted in substance.
[85] North P cited with implicit approval a New South Wales decision in which Herron J recognised that the extent of required particulars must depend largely on the
51 Police v Wyatt, above n 40 , at 1126.
circumstances of each case.52 In then discussing what is required in relation to traffic prosecutions, North P continued:53
In the odd case where the motor driver is unaware of the circumstances that led to his prosecution, I have no doubt that the prosecution, on request, will supply him with further details and, if these are not sought and he is taken by surprise, he has the right to seek an adjournment to enable him to meet the case for the prosecution.
[86] It is clear from the District Court judgment that Judge Hassan, without specifically referring to the Court of Appeal judgments in Police v Wyatt, had the required regard to the circumstances of which the defendant would be aware. In addressing the lack of specific reference in the charging documents to vicarious liability, his Honour stated:54
The extent of uncertainty associated with that lack of clarity in the charging documents is lessened by what can reasonably be inferred to have been known to Fulton Hogan, in the circumstances. Fulton Hogan would have known it held a resource consent (CRC 166199) to excavate and disturb the Kowai River bed. It would have known it is in the business of gravel extraction. It may well not have known that Taylors was a co-defendant (and I understand it was not served with copies of the charging documents that were served on Taylors). However it would have been in a position to conclude in the context that the charges pertained to activities it was presumed to have relevant association with in relation to the Kowai River and on and between the specified dates.
[87] The extent of Fulton Hogan’s awareness of the background circumstances was also reflected in the Summary of Facts referred to by Judge Hassan, wherein it was recorded:55
2.2Fulton Hogan looked to extract suitable gravel materials from a nearby consented site on the Kowai River (the Kowai site). …
2.3Fulton Hogan holds resource consent CRC166199 (the Reserve Consent) which provides for Fulton Hogan to excavate and deposit gravel, sand and other natural material and to disturb the bed of the Kowai River. …
2.7 On 12 April 2017 Fulton Hogan advised Canterbury Regional Council (the Council) by email that gravel take would recommence over a
52 Ex parte Grinham; Re Sneddon [1961] SR (NSW) 862, at 865.
53 Police v Wyatt, above n 40, at 1130.
54 District Court judgment above n 5, at [89](d).
55 District Court judgment above n 5 at [92].
three month period from 13 April 2017 at the Kowai site and that Taylors would be carrying out the work for Fulton Hogan.56
(Footnote added)
[88] It has not been part of Fulton Hogan’s case on this appeal that any of those particular statements contained in the Summary of Facts (as recited in the District Court judgment) was incorrect. Accordingly, Fulton Hogan for present purposes must be taken to be aware that the charges (in relation to excavations and other conduct on the bed of the Kowai River during the period 21 April 2017 to 27 April 2017) closely followed email advice from Fulton Hogan to the council (on 12 April 2017) that gravel take at the Kowai site would recommence over a three month period from 13 April 2017 and that Taylors would be carrying out the work for Fulton Hogan.
[89] I return to Mr Eaton’s proposition (at [76] above) that a lawyer advising Fulton Hogan upon viewing the charging documents would inevitably ask: “How is it that Fulton Hogan is alleged to have contravened ss 13 and 14 of the RMA?”
[90] In these circumstances, Judge Hassan might reasonably have concluded, applying Police v Wyatt, that the charging documents were compliant with s 17 CPA. His Honour, on his assessment of the case, nevertheless found that the Council’s failure to expressly refer to vicarious liability in the charging documents constituted “one minor respect” in which the charging documents failed to fully and fairly inform Fulton Hogan of the substance of the charge. While that is not a qualification which I would have placed on the adequacy of the charges, I accept it was an assessment open to the Judge. I do not find his Honour to have erred in making that assessment.
[91]Accordingly, Fulton Hogan’s proposed question 2 is answered in the positive.
56 I recognise that the Summary of Facts appears not to have been forwarded to Fulton Hogan until some time after the charging documents were served – the relevance of the summarised background in the present context is that it identifies matters of relevant record of which Fulton Hogan would have been aware when it received the charging documents.
Question 3
The question
[92] Was the Judge correct to conclude that the provision of further particulars pursuant to s 18 CPA can remedy a charging document that does not comply with s 17 CPA?
Mr Eaton’s submissions
[93] For Fulton Hogan, Mr Eaton recognised that a charging document which is not compliant with ss 16 and 17 CPA (but is not a nullity) is capable of being saved under s 379 CPA. But, in his submission, it is not further particularisation under s 18 CPA which can remedy a charging document that is defective – the work of s 18 is to address an interest of justice concern in relation to a charging document that otherwise complies with s 17, that is to say, a charging document which fully and fairly informs the defendant of the substance of the offence (but where the interests of justice require further particulars).
[94] Mr Eaton invoked the approach adopted by the Court of Appeal in Talley’s.57 Mr Eaton noted that in the Talley’s litigation, the s 379 CPA applied to save the defective charging document.58 Mr Eaton observed that there was certainly no suggestion in the Court of Appeal judgment that the defective charging document could be remedied by the provision of further particulars.
[95] In Mr Eaton’s submission, the only basis for saving the charging document in this case would have been if s 379 CPA were found to have applied.
Submissions for Council
[96] Mr Shaw, for the Council, commenced his submissions with a focus on the role of further particulars under s 18 CPA. In his submission, the scheme of the CPA makes it clear that the natural remedy for a lack of particulars under s 17 is an order that further particulars be provided under s 18. Further particulars might be provided either
57 Talley’s, above n 32.
58 Talley’s, above n 32, at [77].
by amendment to the charge under s 133 CPA or by some other formal notification of particulars.
[97] In Mr Shaw’s submission, instances of the curing of a lack of particulars are seen in three recent judgments of the Court of Appeal:
(a)Fungavaka v R, where the Court found the defendant to have been fully informed of the particulars of the murder charge he faced through a more detailed description of alleged facts in the summary of fact.59
(b)Wiley v R, where the Court rejected a submission as to the insufficiency of particulars of the substance of the offence (under s 17(4) CPA) on the basis that the prosecutor had made clear, at trial before the jury was empanelled, the basis on which the Crown proposed to proceed.60
(c)Nattrass-Bergquist v R, where the Court, in rejecting a ground of appeal by which it was asserted that a charging document did not contain sufficient particulars to comply with s 17(4) CPA (in relation to the form of murderous intent relied on by the Crown), found that the Crown’s intention to rely on s 167 Crimes Act was clear from the prosecutor’s opening to the jury at trial.61
[98] Mr Shaw noted that the approach identified in these three decisions from the last few years is neither new nor unprecedented. It is consistent with the observation of North P in Police v Wyatt. In rejecting the submission for the defendant (respondent) that the informations should have contained more particulars, the Court of Appeal in Wyatt explored what would have been required of the Police if the informations had been found to be defective by reason of insufficient particulars. North P stated:62
It will be observed that we have not been asked to state what course should be followed by the learned Magistrate if the question of law as framed is
59 Fungavaka v R [2017] NZCA 195 at [11].
60 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [97] – [98].
61 Nattrass-Bergquist v R [2017] NZCA 552 at [64].
62 Police v Wyatt, above n 40, at 1128 – 1129.
answered in the affirmative, but it is perhaps desirable that I should say that it would seem that Mr Holland, in making his submission that the informations should be dismissed, must have overlooked for the moment the provisions of
s. 204 which provide that no information is to be quashed or set aside by reason of any defect or want of form unless the Court is satisfied that there has been a miscarriage of justice. Plainly, if the informations are defective, the proper course is to require the prosecution to give further particulars, and only if the necessary particulars are refused should dismissal be contemplated.
[99] Similarly, McCarthy J observed of the situation where a defendant may be left in doubt as to what really is the allegation against him “if he is embarrassed he is entitled to an order for those necessary to inform him adequately; and I would expect that Magistrates will freely order such particulars”.63
[100] To similar effect was the observation of the Court of Appeal in Talley’s, where it was noted that:64
[46] The New Zealand cases have generally accepted that insufficient particulars of a charge will not render it void if there are some particulars provided. In Wiley v R particulars of an abduction charge did not identify which of the three possible forms of abduction in s 210(1) of the Crimes Act 1961 was alleged. This Court focussed not on nullity but on fairness to the defendant.
[47] …
As Worksafe noted in argument in this case, the preference of the New Zealand courts to take a trial fairness rather than a nullity approach to sufficiency of particulars is consistent with the court’s discretion in s 18 of the CPA to require further particulars to ensure a fair trial.
[101] The District Court, in the context of prosecution under the RMA, has followed this approach. For instance, in Auckland Regional Council v URS New Zealand Ltd, Judge F W M McElrea applied the observation (above at [98]) of North P in Police v Wyatt.65
Discussion
[102] Mr Eaton’s submissions invite a revisiting of an approach which has consistently been adopted by the Court of Appeal, and applied in lower courts, for some years. To answer question 3 in the way invited by Fulton Hogan would be to
63 Police v Wyatt, above n 40, at 1134.
64 Talley’s, above n 32.
65 Auckland Regional Council v URS New Zealand Ltd, above n 44.
ignore the role which the Court of Appeal has recognised further particulars to have. Judge Hassan correctly approached the matter in terms of the settled law when his Honour directed the provision of further particulars.
[103]Question 3 must be answered in the positive.
Outcome
[104]Fulton Hogan is granted leave to appeal on Questions 2, 3 and 4.
[105] To summarise, the questions of law advanced by Fulton Hogan are answered as follows:
(a)Question 2: Was the Judge correct to conclude that the charging documents were compliant with s 17 CPA except in one minor respect?
Yes.
(b)Question 3: Was the Judge correct to conclude that the provision of further particulars pursuant to s 18 CPA can remedy a charging document that does not comply with s 17 CPA?
Yes.
(c)Question 4: Was the Judge correct to conclude that it was not necessary for the charging documents to reference s 340(1) in order for vicarious liability to be relied upon or for the defence under s 340(2) to be available?66
Yes.
66 Question as restated, found to be necessary and desirable under s 299 CPA, above at [40].
[106] The matter is remitted to the District Court in accordance with the opinion of this Court as expressed in the answers to the above questions of law.
Osborne J
Solicitors:
Buddle Findlay, Christchurch
Wynn Williams Lawyers, Christchurch
Counsel:
J H M Eaton QC, Christchurch
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