Kipping v Electrical Workers Registration Board
[2024] NZHC 1557
•13 June 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI 2023-409-000227
[2024] NZHC 1557
UNDER The Criminal Procedure Act 2011; the Electricity Act 1992 BETWEEN
JOHN BRIAN KIPPING
Appellant
AND
ELECTRICAL WORKERS REGISTRATION BOARD
Respondent
Hearing: 18 April 2024 Appearances:
Mr Kipping, Appellant in person A S Bagchi for the Respondent
Judgment:
13 June 2024
JUDGMENT OF TAHANA J
(Appeal against conviction and sentence)
This judgment was delivered by me on 13 June 2024 at 3.00pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel/Parties:
Copy to the Appellant (Mr J B Kipping) Luke Cunningham Clere, Wellington
KIPPING v ELECTRICAL WORKERS REGISTRATION BOARD (Appeal against conviction and sentence) [2024] NZHC 1557 [13 June 2024]
Introduction
[1] Mr Kipping appeals the decision of Judge Callaghan dated 11 August 2023.1 Mr Kipping was charged with three charges of doing, or assisting in doing, prescribed electrical work in breach of s 74 of the Electricity Act 1992 (the Electricity Act)2 and two alternative charges of negligently doing work on an electrical installation in a manner dangerous to life.3 The Judge found Mr Kipping:
(a)guilty on two charges of doing prescribed electrical work by removing heat pumps from two properties; and
(b)not guilty on one charge of installing a heat pump when not authorised to do so.
[2]No findings were made in relation to the alternate charges.
[3] On 18 October 2023, Mr Kipping was fined $1,500 for each conviction ($3,000 in total).4
[4] Mr Kipping argued that he was denied his rights under the New Zealand Bill of Rights Act 1990 (the Bill of Rights) because of undue delays, denial of legal representation at the trial and denial of his right to examine witnesses. Further, he claims that the Judge erred in finding that:
(a)Mr Kipping had removed, or had assisted in the removal of, the heat pumps; and
(b)the removal of the heat pumps was “prescribed electrical work” under the Electricity Act.
1 Electrical Workers’ Registration Board v Kipping [2023] NZDC 16749 [Conviction Decision].
2 Electricity Act 1992, ss 74 and 162, maximum penalty of a fine not exceeding $50,000 in the case of an individual.
3 Section 163D.
4 Electrical Workers’ Registration Board v Kipping [2023] NZDC 25036 [Sentence Decision].
Issues
[5]The issues I need to determine on appeal are:
(a)Whether Mr Kipping’s rights under the Bill of Rights have been infringed and in particular:
(i)whether he was denied the right to be tried without undue delay;
(ii)whether he was denied the right to legal representation and/or a fair trial; and
(iii)if his rights were denied, whether his convictions should be set aside.
(b)Whether the Judge erred by:
(i)finding that Mr Kipping had removed (or assisted in the removal of) the heat pumps; and/or
(ii)finding that the removal of heat pumps constitutes prescribed electrical work under the Electricity Act.
(c)Whether leave should be granted to allow Mr Kipping to appeal his sentence and if so, whether the fines imposed are manifestly excessive.
Background
[6] The facts set out below are taken from the Conviction Decision. Mr Kipping disputes that there was sufficient evidence to establish that he (and not the person he was with) removed the heat pumps.
[7] It was accepted that in 2006, Mr Kipping had sat the Electrical Service Technician examination and practical assessment and passed it, but he was never registered under the Electrical Workers Registration Board (the Board).
[8] On 4 March 2019, Mr Kipping and another removed two heat pumps from a residential property at Isaac Road, Christchurch (the Isaac Road Property). Prior to removing the heat pump, the isolator switch was turned off and a piece of wire was put through it. After the heat pump was removed, the wires leading from the isolator switch to the heat pump were left on the ground.
[9] On or about 23 September 2019, Mr Kipping and another removed a heat pump from a residential property at Roys Street, Christchurch (the Roys Street Property). As with the Isaac Road Property, a wire was placed through the loop of the isolator switch. The wires between the isolator switch and the heat pump were left on the ground.
[10] Mr Kipping says the heat pumps were removed because of disputes over payment for the heat pumps.
[11] On 22 October 2019 (regarding the Roys Street Property) and on 8 December 2019 (regarding the Isaac Road Property), complaints were made to the Board about the removal of the heat pumps.
[12] The Board investigated the complaints, including contacting Mr Kipping and obtaining an opinion from Mr David Olsen, a registered electrical inspector and technical advisor to the Ministry of Business, Innovation and Employment (MBIE).
[13] Some 18 to 20 months later, on 16 June 2021 the Board filed the charges against Mr Kipping.
Decision under appeal
Conviction decision
[14]It was undisputed that Mr Kipping was not registered under the Board.
[15] In relation to both properties, the Judge was satisfied that the evidence was sufficient to establish that Mr Kipping had removed, or assisted in the removal, of the heat pumps.
[16] In finding that the removal of the heat pumps came within the definition of prescribed electrical work, the Judge relied on the evidence of Mr Olsen. Mr Olsen’s evidence was that removal of the heat pumps was prescribed electrical work because it involved disconnection of fittings from a power supply. Further, Mr Olsen did not consider that the removals involved isolating and earthing the heat pumps so did not fall within the definition of work that is not prescribed electrical work.
[17] On the charge regarding installation of the heat pumps, the Judge held that the prosecution had failed to prove that Mr Kipping connected the heat pumps to the power supply, and he was found not guilty.5
Sentencing decision
[18] The Judge imposed a $1,500 fine for each charge ($3,000 in total) and directed that 90 per cent of the fine be paid to the Board.
Notice of Appeal
[19] On 10 November 2023, Mr Kipping filed a notice of appeal. The notice refers to the “conviction and sentence” and specifies the grounds of appeal as follows:
All nine witness statements 8 months late.
Solicitor withdraw at start of proceedings, judge said case was proceeding – no representation.
Two key witnesses not present – vital evidence missing. Judge presumes to know the intention of Parliament.
Judge presumes to know the working of an isolator switch.
[20] Despite referring to an appeal of conviction and sentence, the appeal notice only refers to s 229 of the Criminal Procedure Act 2011 (the CPA), which relates to an appeal against conviction. It did not refer to s 244 which relates to an appeal against sentence. The Board argued that Mr Kipping cannot appeal his sentence because of his failure to specify s 244 in the notice of appeal.
5 Conviction Decision, above n 1, at [75].
Approach on appeal
[21] The appellate court must allow an appeal against a judge-alone trial if the Court is satisfied that:6
(a)the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)a miscarriage of justice has occurred for any reason.
[22] A miscarriage of justice means any error, irregularity or occurrence in, or in relation to, or affecting, the trial that:7
(a)has created a real risk that the outcome of the trial was affected, or
(b)has resulted in an unfair trial or a trial that was a nullity.
[23] I therefore need to determine whether there was any error and if so, whether it resulted in a miscarriage of justice. I first consider the alleged infringements of Mr Kipping’s rights under the Bill of Rights and then whether there was any error in the assessment of the evidence.
Alleged infringement of Bill of Rights
Was Mr Kipping denied the right to be tried without undue delay?
[24] Everyone charged with an offence has the right to be tried without undue delay.8
[25] The heat pumps were removed in March and September 2019 and charges were filed on 16 June 2021. The trial started on 31 July 2023, just over two years (25 months) after the charges were filed and nearly four years after the Board first received the complaints in September 2019.
6 Criminal Procedure Act 2011, s 232(2)(b) and (c).
7 Section 232(4).
8 New Zealand Bill of Rights Act 1990, s 25(b).
[26] The Supreme Court in R v Williams held that the right to be tried without undue delay is directed to the time that elapses between arrest and final disposition, including any appeal.9 The Supreme Court referred to the approach in R v Morin10 as follows:11
That approach is to look at a range of factors, including the length of the overall delay, any waiver of time periods, the reasons for the delay (including time requirements, actions of the accused and the Crown, limits on institutional resources and any other reasons) and prejudice to the accused.
[27] Whether the delay is due to the courts or to the prosecution is irrelevant to the question of excessive delay but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted.12
[28] Here, 25 months elapsed between the filing of charges and the trial. Mr Kipping submitted that the delays were due to Crown Law and MBIE and not due to any act or omission on his part. Mr Kipping pleaded not guilty to all charges in July 2021. At that time, he had not been provided with any witness statements.
[29] Mr Kipping relies on s 13 of the Criminal Disclosure Act 2008 which requires that the prosecutor must disclose relevant information as soon as is reasonably practicable after a defendant has pleaded not guilty. Relevant information includes a copy of any witness statement.13 Mr Kipping says that the respondent was ordered to discover the witness statements by the end of November 2021 but did not comply and was then directed to file witness statements by 1 February 2022 and again, did not comply until seven witness statements were disclosed on 3 February 2022 and two further witness statements on 14 February 2022.
[30] Counsel for the Board did not seek to explain the reasons for the delays in filing the witness statements. I accept that there was non-compliance with s 13 of the Criminal Disclosure Act by not disclosing the prosecution witness statements as soon as is reasonably practicable after July 2021, when Mr Kipping pleaded not guilty. That
9 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [10].
10 R v Morin [1992] 1 SCR 771 at 787–788.
11 R v Williams, above n 9, at [11].
12 At [12].
13 Criminal Disclosure Act, s 13(3)(a).
delay was addressed by the Court and the Board was directed to file the statements by 1 February 2022. There was non-compliance with that direction by a few days.
[31] I accept that there were delays and that the delays were due to the actions of the prosecution and not Mr Kipping.
[32] In Martin v Tauranga District Court, the Court of Appeal held that a 17-month delay from charge to trial date resulting from the unjustified action of the prosecutor amounted to “undue delay” under s 25(b) of the Bill of Rights.14 The Court considered that it was “the contribution from the prosecutor that tips the balance in this case”.15 In Martin v Tauranga District Court, the prosecutor had taken it upon himself to vacate the fixture.16 The Court allowed the appeal and directed a stay.
[33]Here, the overall time between the charges and the trial was 25 months.
[34] Counsel for the Board refers to two cases where the courts have held that delays of 27 months17 and 39 months18 were not found to be “undue”. In R v Grant, there was no suggestion of fault on the part of the Crown and the Court noted that a period of 27 months must be regarded as “more than borderline”.19 While the Court considered the delay was serious, there was no actual prejudice to the defendant.20
[35] In R v Drew the Court noted that any prosecutorial delay was solely as a result of witnesses failing to appear and the unavailability of the officer in charge and those delays resulted in a delay of one month and 10 days.21
[36] I accept that the delay here was excessive and the reason for the delay was partly due to the conduct of the Board in the delayed disclosure of witness statements. I do not however, consider that the delay necessarily resulted in an unfair trial in circumstances where the key issue at trial turned on expert evidence as to whether the
14 Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) at 426.
15 At 426.
16 At 421.
17 R v Grant CA471/95, 29 May 1996.
18 R v Drew (1998) 4 HRNZ 614 (CA).
19 R v Grant, above n 17, at 5.
20 At 5 and 6.
21 R v Drew, above n 18, at 624.
work was prescribed electrical work. That evidence did not depend on witness memory.
[37] In R v Williams the Court emphasised that there may be an undue delay without there being any prejudice to a fair trial.22 That was one of the reasons why the Court considered that a stay is neither mandatory nor a usual remedy for undue delay.23 The Court noted that where there is undue delay in an accused coming to trial, the remedy must provide a “reasonable and proportionate response” to that delay:24
Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy.
[38] I consider a stay is not appropriate but that the undue delay is likely to be relevant when assessing whether Mr Kipping’s sentence should be reduced. I therefore consider this issue when considering Mr Kipping’s appeal against sentence.
Was Mr Kipping denied the right to legal representation, to examine witnesses and/or to a fair trial?
[39] Everyone charged with an offence is entitled to legal representation and adequate time and facilities to prepare a defence:25
24 Rights of persons charged
Everyone who is charged with an offence—
…
(c)shall have the right to consult and instruct a lawyer; and
(d)shall have the right to adequate time and facilities to prepare a defence; and
(e)…
22 R v Williams, above n 9, at [11].
23 At [11].
24 At [18].
25 Bill of Rights, s 24.
(f)shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and
(g)shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court.
[40] Section 25 of the Bill of Rights prescribes the minimum standards of criminal procedure which standards include the right to a fair hearing26 and the right to examine witnesses.27 In R v Condon the Supreme Court noted the guarantees afforded by the Bill of Rights:28
Section 25(a) of the Bill of Rights guarantees to every person charged with an offence the right to a fair hearing. Such a person also has the rights under s 24(c), (d) and (f) to consult and instruct a lawyer, to adequate time and facilities to prepare a defence and to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance.
[41] In R v Condon, the Supreme Court also provided guidance on how an appellate court can assess whether the lack of legal representation resulted in an unfair trial. Relevantly, the test in determining whether an unrepresented defendant received a fair trial is whether their “lack of the proper opportunity to have legal representation made or contributed to making the trial, looked at as a whole, unfair so that there has been a substantial miscarriage of justice.”29
[42] Any analysis requires the appellate court to determine the circumstances in which the defendant came to be tried without a lawyer. If the defendant was denied an opportunity to consult a lawyer, the onus is on the prosecution to satisfy the Court that in the circumstances, the absence of representation did not result in an unfair trial.30 Whether there was a fair trial requires the appellate court to carefully consider what occurred at trial and during the earlier period when the defendant was preparing to conduct the defence.31 The Court must then examine the manner in which the Judge presided over the trial and consider the personal characteristics of the defendant, the
26 Bill of Rights, s 25(a).
27 Section 25(f).
28 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [66].
29 At [79].
30 At [81].
31 At [81].
nature of the Board’s case and how effectively the defendant managed to convey the defence in cross-examination of witnesses.32
[43] I must therefore examine the circumstances in which Mr Kipping came to be unrepresented, how the Judge conducted the trial, the personal circumstances of Mr Kipping, the nature of the prosecution’s case and how effectively Mr Kipping managed to convey his defence.
[44] Mr Kipping’s lawyer was granted leave to withdraw on the morning of the trial. Mr Kipping had been legally aided. The trial proceeded that morning with Mr Kipping representing himself. The transcript of the hearing indicates Mr Kipping’s legal counsel asked for leave to withdraw, as follows:
[COUNSEL] FOR MR KIPPING TO THE COURT:
A. So the second set of issues Sir was that Mr Kipping and I have obviously been working through this for some time. He and I have a very different viewpoint on certain matters and he’s indicated that his preference would be to seek alternate counsel. If the matter were to proceed today Sir my position would be that I couldn’t act for him and so I would seek leave to withdraw and I understand that he would then address your Honour seeking an adjournment of matters if it wasn’t able to proceed today. He’s aware of the various witness issues but those witnesses are required from his perspective and they’re required in person because there are exhibits that he would want to go through with them.
Q. Right, okay so you want leave to withdraw?
A. Yes Sir.
Q. You will be granted leave to withdraw.
A. As your Honour pleases.
THE COURT TO MR KIPPING:
Q. Mr Kipping you're ready to proceed? You ready to proceed?
A. Only...
COURT TAKER TO MR KIPPING:
Q. You'll just need to stand by a microphone.
THE COURT TO MR KIPPING:
Q. Come to a microphone please.
32 At [82].
A.Yes your Honour the issue that I have is I wish to question the three electricians who I now find out aren’t going to be here.
Q. Well they are going to be here. They’ll be here for evidence.
A. Sorry?
Q.They will be giving evidence and you'll be able to question them or some of them anyway. Are you an electrician?
A. No.
Q. Right, okay. Right, well the prosecution are seeking if they’re not physically present in court they will be on a screen so you will be able to question them so there's no issue with that. Okay?
A. All the three?
Q.Well I don’t know about Mr Zhou. He’s not available according to the prosecution so they’re obviously not calling him so, or her, him, so they will go without that witness so that's one witness down. But Mr Tucker and Mr Gandi will be available to be cross-examined.
[45] At the appeal hearing, Mr Kipping submitted that he had not instructed counsel that he wished to engage alternative legal representation. Mr Kipping’s concern was that the witnesses would not be present so that he could cross-examine them. He wished to put the diagram he had drawn to them to establish that there was no disconnection from a power supply.
[46] Mr Kipping submitted that he understood that the Judge wished to proceed, and he felt that he had no alternative but to represent himself. While Mr Kipping’s counsel had indicated Mr Kipping wished to obtain alternative counsel, Mr Kipping only expressed concern as to the availability of witnesses. It was therefore open to the Court to understand that Mr Kipping was comfortable with proceeding without legal representation.
[47] Further, on the first day of the trial after the lunch adjournment, Mr Kipping informed the Court that he had seen a duty solicitor at the lunch break and had taken some advice. At 3.51 pm that same day, the Court asked Mr Kipping if he had seen Mr Olsen’s technical adviser report. Mr Kipping indicated that he had not. Counsel for the prosecution indicated that an adjournment would not be opposed if the Court was suggesting an adjournment, given Mr Kipping was self-represented. The hearing was adjourned early for the day after the Court explained to Mr Kipping that:
THE COURT ADDRESSES MR KIPPING (16:01:20)
Q.If calling expert witness need to have his brief of evidence into the court beforehand.
A. Right, so I would just have to call him as an electrician?
Q. Yes. Well if he’s going to give expert evidence probably, yeah, you are probably too late in time. What normally has to happen is they have to give their brief of evidence over and exchange briefs and normally have a meeting, etc. I've given you a fair bit of slack with Mr Tucker.
A. Yes.
[48] Up until the day of the trial, Mr Kipping had the benefit of legal advice. While the above exchange suggests that Mr Kipping may have wished to call expert evidence, he had the opportunity to obtain legal advice on that issue right up to the trial but no expert was engaged. It appears that the strategy was to rely on cross- examination and not on his own expert to establish that the electrical work was not prescribed electrical work. That failure cannot be said to be due to the fact he was unrepresented at trial in circumstances where he had legal counsel up to the morning of the trial. Mr Kipping did not appear to appreciate that it would have been preferable to call his own expert to opine on whether the work was prescribed electrical work rather than seek to extract concessions to that effect from witnesses who were electricians.
[49] Mr Kipping cross-examined the engineers who gave evidence: Mr Tucker and Mr Olsen. Mr Kipping was able to convey his defence in undertaking that cross- examination. Mr Kipping was articulate and knowledgeable. He was able to explain why he considered the work was not prescribed electrical work and why he considered the isolator switch “isolates” the electricity supply when turned off.
[50] I do not consider that the fact Mr Kipping did not have legal representation resulted in an unfair trial when he had the opportunity to obtain legal advice as to whether to call expert evidence right up to the morning of the trial. Mr Kipping was able to articulate his view as to why he considered the work was not prescribed electrical work so was able to convey his defence to the Judge.
Was Mr Kipping denied the right to examine witnesses?
[51] The Bill of Rights requires that everyone charged with an offence, has, in relation to the determination of the charge, the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution.33
[52] The Board says that Mr Kipping’s right was not infringed because he agreed to Mr Gandi’s witness statement being admitted by consent. The transcript of the hearing indicates that:
Q.… The prosecution just wanted to put a statement in which coincides with the exhibit I assume that he did the installation at Roy Street on the 18th of April 2019. So that is on page 6 of the documentation. So what is your position on that?
A. I’m to some extent conscious of the time as well. I would’ve – I would preferred him her to go through the same set of questions I went through with Anthony Tucker.
Q.So points have been made with Mr Tucker. I am well aware of the point. That is just repeating, it is not going to be much assistance.
A. That’s right. So, I think we’ll accept that Mr Gandi will not be here.
THE COURT ADDRESSES COUNSEL – PUT EXHIBIT IN – COC
(12:31:19)
Q. Can we put his statement in Mr Kipping? That is what is his evidence?
A. Yes.
Q. Right. Thank you.
[53] Mr Kipping had therefore agreed to the statement being admitted by consent. Further, the statement simply confirms that Mr Gandi installed the heat pump and isolator at the Roys Street Property on 18 April 2019. Given Mr Kipping’s consent, he cannot now assert an infringement of his rights.
33 Bill of Rights, s 25(f).
[54] Turning to Mr Zhou, a witness is a person who gives evidence and is able to be cross-examined in a proceeding.34 Witnesses must take an oath or make an affirmation before giving evidence.35 The fact that a person has signed a statement does not make that person a “witness” for the purposes of s 25(f) of the Bill of Rights. Mr Zhou did not give evidence and Mr Kipping is mistaken in assuming that the Board was required to call all persons as witnesses who had signed statements. If the Board chose to do so, then Mr Kipping had a right to examine those witnesses. If the witness was not called then there was no right to cross-examine as the content of the witness statement could not be relied on.
[55] Here, the prosecution did not call evidence from Mr Zhou. The Board did not therefore rely on the contents of that statement, so it follows that Mr Kipping was not denied any right to examine a witness.
Conclusion — right to legal representation and examination of witnesses
[56] I do not therefore consider that the fact that Mr Kipping was self-represented undermined his right to a fair trial. Mr Kipping was able to convey his defence to the witnesses in cross-examination and he was able to access legal advice during the trial when he spoke with a duty solicitor. Further, Mr Kipping agreed to Mr Gandi’s statements being admitted by consent. He cannot claim that his right was infringed when he agreed. Mr Zhou was not called as a witness, so Mr Kipping was not denied the right to cross-examine Mr Zhou.
Did the Judge err in finding that Mr Kipping had done, or assisted in, the removal of the heat pumps?
[57] The Supreme Court in Sena v Police provides guidance on determining on appeal whether there has been judicial error in assessment of the evidence, as follows:36
34 Evidence Act 2006, s 4. The purpose of the Evidence Act includes to help secure the just determination of proceedings by providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990 (s 6(b)).
35 Section 77(1).
36 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
(a)If an appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred and the appeal must be allowed.37
(b)However, it is not the role of the appellate court “to consider the issues de novo as if there had been no hearing at first instance.”38
(c)“[I]t is for the appellant to show that an error has been made.”39
(d)“[I]n assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had.”40
(e)Subsection 232(2)(c) “is concerned with whether something material has gone wrong with the trial beyond the sufficiency of the evidence.”41 The concept of “miscarriage of justice” as defined in s 232(4) is “central” to appeals under s 232(2)(c).42
[58] At the trial, Mr Kipping did not dispute that he had removed the heat pumps. On appeal, he now claims that the Judge erred in finding that he removed the heat pumps in circumstances where Mr Kipping was at each Property with another person.
[59] In finding that Mr Kipping had removed the heat pumps at each of the Properties, the Judge referred to the evidence in support of that finding.
Roys Street Property
[60] At [62] of the Conviction Decision, the Judge notes that Mr Kipping did not dispute that he went to the Roys Street Property and removed a heat pump. At [28], the Judge refers to photographs taken of Mr Kipping at the address and at [29], the fact Mr Kipping was challenged by Ms Mitchell. Ms Mitchell’s evidence was that she saw Mr Kipping with someone else standing behind him. Ms Mitchell asked him what
37 At [38].
38 At [38].
39 At [38].
40 At [38].
41 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25].
42 Mathew Downs (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at [CPA232.04].
he was doing and Mr Kipping said “I’m fixing it.” After speaking to her husband on the phone, Ms Mitchell went outside and saw the heat pump on a sack barrow, and she confronted Mr Kipping. The photobook included security camera photographs of Mr Kipping, seen walking with a tool in his hand in one photograph and crouching down in front of the heat pump in another photograph. Mr Kipping did not challenge Ms Mitchell on her account of his involvement in cross-examination.
[61] It was open to the Judge to find that Mr Kipping had done and/or assisted in the removal of the heat pumps given the photographs and Ms Mitchell’s evidence. That was not an error.
Isaac Road Property
[62] At [33] and [62] of the Conviction Decision, the Judge set out the evidence regarding Mr Kipping doing, or assisting in, the removal of the heat pumps at Isaac Road. Mr Too gave evidence that he saw Mr Kipping removing the second heat pump. Mr Kipping did not challenge Mr Too’s identification of him removing the heat pumps. The respondent submits that any potential inaccuracy by Mr Too in identifying the other person present does not detract from the accuracy of his evidence about Mr Kipping removing the heat pump.
[63] It was open to the Judge on the evidence to find that Mr Kipping had undertaken and/or assisted in undertaking the removal of the heat pumps.
[64]I reject this ground of appeal.
Conclusion
[65] The Judge did not err in finding that Mr Kipping had done, or assisted in, the removal of the heat pumps at the Roys Street Property and the Isaac Road Property and therefore this ground of appeal is dismissed.
Did the Judge err in finding that the work was prescribed electrical work?
[66] Prescribed electrical work means electrical work prescribed in regulations under s 169, being work that falls into any of the following categories:43
(c)the connection or disconnection of works, electrical installations, and electrical appliances to or from a power supply, other than by means of—
(i)a plug; or
(ii)an appliance inlet; or
(iii)a pin—
that is inserted into a socket outlet:
[67] Under the Electricity (Safety) Regulations 2010 (the Regulations) prescribed electrical work (for the purposes of the Electricity Act) is electrical work of a type described in cl 1 of sch 1 that is not work of a type described in cl 2 of that schedule.44
[68] Clause 1(1) of sch 1 sets out the types of electrical work that is prescribed electrical work and includes:45
…
(c) the connection or disconnection of fittings to or from a power supply, other than by means of a plug or pin inserted into a socket, or an appliance connector inserted into an appliance inlet:
[69] Fittings means everything used, or designed or intended for use, in or in connection with the generation, conversion, transformation, conveyance or use of electricity.46
[70]Power supply means a supply of electricity.47
[71] The work described in cl 2 (that is work that is not prescribed electrical work) includes:
43 Electricity Act 1992, s 2.
44 Electricity (Safety) Regulations 2010, reg 6.
45 Schedule 1, cl 1.
46 Electricity Act, s 2.
47 Section 2.
Isolating and earthing
(f)operating or switching works, installations, or appliances for the purpose of isolating and earthing the works, installations, or appliances, including manually applying or removing temporary earthing or bonding fittings and manually removing and reinserting fuses:
…
Permanent removal
(i)permanently removing, dismantling, or demolishing works or installations that have been permanently disconnected from a power supply:
…
Appliances
(j)maintaining appliances, but only if the work is done in accordance with user instructions prepared by the manufacturer and supplied with the appliance to the user:
(k)repairing or reworking an appliance, but only if it is undertaken in accordance with the instructions of the original manufacturer of the appliance:
…
[72] In order to fall within the definition of prescribed electrical work, the work must therefore:
(a)be prescribed electrical work within the meaning of cl 1(1) of sch 1 of the Regulations being work that falls within the specified categories in the definition of prescribed electrical work in s 2 of the Electricity Act; and
(b)be work that does not fall within the exceptions at cl 2 of sch 1 of the Regulations.
[73] The Judge found that it was proved beyond reasonable doubt that Mr Kipping did prescribed electrical work on each occasion.48 The Judge set out the evidence of
48 Conviction Decision, above n 1, at [63].
Mr Anthony Tucker, a registered electrician with 13 years’ experience and the evidence of Mr Olsen.
[74] Mr Tucker’s evidence was that turning off the isolator switch was not prescribed electrical work. He could not discount the possibility that removing the heat pump was not prescribed electrical work once the isolating switch had been turned off and tested. Mr Tucker explained that best practice would have been to switch off the isolator switch, check whether there was any electricity flow with a testing meter before severing the wires and twisting them together. He said that inserting a piece of wire into the isolating switch was not best practice because the switch could still be turned on or off.
[75] Mr Olsen’s evidence was that switching off the isolator switch does not isolate the appliance because it is still connected to a power supply. He said that this was not a valid way of isolating the heat pump because anyone could turn the isolator switch back on. Mr Olsen’s evidence was that the disconnection involved removing the installation wiring that interfaces with the “screw terminal connector” on the heat pump. He said that the relevant fitting was the “screw terminal connector” within the heat pump. By taking the wires out of the screw terminal connection, Mr Kipping had disconnected fittings from a power supply.
[76] Mr Olsen explained that the wire installed at the isolator switch did not prevent the isolator switch from being accidentally turned on. If the isolator switch had been turned on, the exposed parts of the installation would have been ‘live to touch’. Touching the live parts could have resulted in electrocution.
[77] The Judge held that by removing the conductors from the heat pump, Mr Kipping had disconnected an electrical appliance from the power supply and such work did not fall within any of the permitted exceptions.
[78] Before considering whether there was any error in the Judge’s findings, I set out the key issues:
[79]The key issues are:
(a)Did the removal of the heat pumps involve the disconnection of fittings from a power supply in accordance with cl 1(1)(c) of sch 1 of the Regulations (the work)?
(b)If yes, did the work comprise:
(i)operating or switching works, installations or appliances for the purpose of isolating and earthing the appliance in accordance with cl 2(f) of sch 1; or
(ii)maintaining, repairing or reworking the heat pumps in accordance with the requirements of cl 2(j) and/or 2(k) of sch 1?
(c)If the answers to (c)(i) and (ii) are “no”, then the work is prescribed electrical work.
(d)Was Mr Kipping authorised to undertake prescribed electrical work?
[80] Mr Kipping submits that the Judge erred in assessing the expert evidence. Mr Olsen’s evidence was that the power supply extends from the isolator switch along the wires and then connects to the switch terminal connector within the heat pump. In Mr Olsen’s view, the fitting was connected to a power supply because it was connected to an electrical installation being the wires that extended into the switch terminal connector. The fact the isolator switch could be switched on and off meant that there remained a connection to a power supply.
[81] Mr Olsen did not consider that the work amounted to isolating and earthing within the meaning of cl 2(f) and described the type of work that would amount to “operating or switching” for the “purpose of isolating and earthing” as follows:
It will be used for – typically used a lot for perhaps some switch gear that can isolate all conductors and it’s a total isolation used in a works environment particularly and the switching of an application with a switch is not isolation because it’s still connected.
...
So isolating and switching and for earthing for the purpose of isolating or earthing the works or installation, it is actually a special application and what you’re talking about is using a switch to turn it off and calling it isolation but it’s not isolated, it’s still connected and this here would be an application where it is a full isolation under a controlled environment with specific switch gear that would disable or disconnect all possible conductors to be able to be connected to the -to a system. So switching off a switch is not isolating the appliance. No, ‘cos that would then contravene what the regulations and the Act says. It is talking about the conductors.
[82] Mr Olsen also explained the steps that he considers should have been taken. Presumably such works would comprise “manually applying” “temporary earthing or bonding fittings” within the meaning of cl 2(f). Mr Olsen referred to a junction box with screw terminal connections which would be placed over the end of the conductors and then a box put over the top of that. He referred to this as “one form of isolation by ensuring that the conductors if they were by accident or inadvertently come alive, there is another means of a barrier to prevent people coming in contact with live parts.” Mr Olsen also opined that turning the isolator switch off and twisting the wires together would not be an effective way of isolating the wires.
[83] Mr Tucker accepted in cross-examination that the appliance is “isolated” once the isolator switch is turned off. Mr Tucker described the isolator switch as “[l]ike a light switch isolator.” He also said, “[i]t’s just a switch on the wall”. He agreed that:
You can work on it it’s not prescribed electrical work, that’s if I’m interpretating this correctly. 2F. Certainly says it’s not prescribed work to isolate it for the purpose of earthworks or installations or appliances.”
[84]Mr Tucker again responded to cl 2(f) as follows:
Q. “So operating or switching works, installations or appliances for the purpose of isolating and earthing the works”, so tell me what isolating and earthing the works is?
A.Well isolating is making it safe and then if you’re work – this, I think this is more applicable to maybe linesmen and they’re earthing machinery appliance, I’m guessing.
[85] Mr Kipping argued that the point of turning off an isolator is to disconnect the appliance from the mains and therefore the Judge is wrong to say that an appliance is still connected when it is isolated. Mr Kipping’s argument ignores the expert evidence of Mr Olsen that fittings will be connected to a power supply even when a switch is
turned off. The relevant act is the disconnection of the wires from the conductors not turning off a switch. The expert evidence of Mr Olsen is that turning off a switch is not “isolating”.
[86] There would have been no issue if Mr Kipping simply turned the isolator switch off. The offending arose by reason of the disconnection of the wires from the screw terminal connector in the heat pump in circumstances where Mr Kipping’s work did not involve switching “for the purpose of isolating and earthing” the heat pumps. The Judge was entitled to rely on the expert evidence of Mr Olsen.
[87] Further, Mr Kipping says that if persons are authorised to maintain, repair or rework appliances (which comes within the definition of work that is not prescribed electrical work), then there is no reason why persons cannot remove the heat pump after it has been isolated by turning off the isolator switch. Again, Mr Kipping’s argument ignores Mr Olsen’s evidence. Turning an isolator switch off does not amount to switching the heat pumps for the purposes of isolating and earthing. Mr Kipping did not call any expert evidence at trial nor on appeal to contest that finding. The argument also ignores the obvious safety risk that persons are able to activate the electricity supply simply by turning the isolator switch on. The wire Mr Kipping inserted into the isolator switch did not prevent that from happening. For these reasons, the Regulations require that the disconnection be performed by a registered person.
[88] The Regulations have clearly prescribed the types of disconnections that are not prescribed electrical work being disconnection of fittings to or from a power supply by means of a plug or pin inserted into a socket or an appliance connector inserted into an appliance inlet (cl 1(1)(c)). Further, permanently removing installations that have been permanently disconnected from a power supply is not prescribed electrical work as prescribed in cl 2(i) of sch 1. Clearly Parliament has distinguished between removal of installations that are temporarily disconnected and removal of installations that are permanently disconnected from a power supply.
[89] I do not consider that the Judge erred. The Judge was entitled to rely on the expert evidence of Mr Olsen and, as is required of Judges, to consider Parliament’s
likely intent in enacting the Electricity Act. The purpose of the Electricity Act includes to protect the health and safety of members of the public in connection with the supply and use of electricity in New Zealand.49
[90]Mr Kipping submits that the witnesses not present — Mr Gandi and Mr Zhao
— would have probably concluded that isolating and working on the heat pump was not prescribed electrical work. That is pure speculation. Further the Board was not required to call witnesses and the opportunity was available to Mr Kipping to call his own expert witness to corroborate his position that the removal of the heat pumps fell within the exemptions in cl 2 of sch 1 to the Regulations. Mr Kipping has not called any expert evidence, whether at trial or on appeal, to corroborate his position.
Conclusion
[91] The Judge did not err in relying on Mr Olsen’s evidence. That evidence established that the work completed by Mr Kipping was prescribed electrical work. This ground of appeal is dismissed and therefore the conviction appeal is dismissed.
Sentence appeal
Does the Court have jurisdiction to consider an appeal against sentence?
[92] Counsel for the Board argued that Mr Kipping did not specify s 244 of the CPA in his notice of appeal and therefore the Court lacks jurisdiction to modify the sentence unless Mr Kipping’s conviction appeal is successful.
[93] Mr Kipping is self-represented. It is obvious from the notice of appeal that he was appealing both the conviction and sentence. I do not therefore accept that Mr Kipping’s failure to specify s 244 of the CPA is a reasonable basis for denying leave to appeal against his sentence. Further, the Court has jurisdiction to grant leave for Mr Kipping to appeal out of time.50 There is no prejudice to the Board in doing so in circumstances given the Board had full notice of the appeal.
49 Electricity Act, s 1A(c).
50 Criminal Procedure Act, s 248(4).
Approach on appeal
[94] Section 250 of the CPA sets out how a court is to determine a sentence appeal. An appeal must be allowed if the court is satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.
[95] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.51 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.52 A judge on appeal should not intervene where the “sentence imposed was within a range that could be· properly justified by accepted sentencing principles”.53
Did the Judge impose fines that were manifestly excessive?
[96]The Judge imposed a fine of $1,500 for each conviction ($3,000 in total).54
[97] In considering the starting point, the Judge noted that Mr Kipping’s counsel had indicated a fine in the vicinity of $2,000 would be appropriate.55 The Judge referred to the cases relied on by Mr Kipping’s counsel.
[98]In Electrical Registration Board v Atkins, the Court adopted a starting point of
$5,000, that was reduced to $4,000 to take account of Mr Atkins’ guilty plea.56 The Judge then considered that due to Mr Atkins’ age and financial circumstances, the fine should be reduced by 50 per cent to $2,000.57 In that case, Mr Atkins had installed: an additional circuit in the lounge; light fittings; power outlets; and light switches. A meter box and earth pin were also upgraded. Cables were exposed, cables in the bedroom were left open-ended, a non-regulation shaver outlet was fitted and cables in the kitchen were left unprotected. No safety checks were carried out.
51 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [35].
52 At [36].
53 At [36] citing Tutakangahau v R [2014] NZHC 556 at [10].
54 Sentence Decision, above n 4, at [11].
55 At [5].
56 Electrical Workers Registration Board v Atkins [2019] NZDC 3666.
57 At [14].
[99] In Johnston v Electrical Workers Registration Board, the District Court adopted a starting point of $3,000 and then reduced this to $1,000 to take account of Mr Johnston’s guilty plea and the value of reparations (which exceeded $5,000) he was ordered to pay the victim.58 The decision was upheld on appeal to the High Court59 and the Court of Appeal declined Mr Johnston leave to appeal.60
[100] Mr Johnston had developed a six-section subdivision and while an electrical contractor had installed electrical services to the boundary boxes, Mr Johnston installed underground cables from the boundary boxes to each section and was not registered. A purchaser of one of the sections incurred costs having to obtain a certificate of compliance and complained to the Board.
[101] Mr Kipping argued that he had not instructed counsel to make the submissions as to the quantum of an appropriate fine. Even if that is true (which I do not need to determine), it is irrelevant to the question of whether the fines were manifestly excessive. In circumstances where the Judge referred to caselaw indicating starting points ranging from $3,000 to $6,000 and end fines ranging from $1,000 (where significant reparations were ordered) to $4,500,61 an end fine of $1,500 on each charge is not manifestly excessive. In both Atkins and Johnston, the defendants had pleaded guilty, so the end fines reflect discounts for guilty pleas.
[102] I also agree with the Judge that the aggravating features of the offending were the negligent work, safety issues (children could have been injured if the isolator switch was turned on) and knowledge that registration is required for prescribed electrical work.
[103] The Judge also correctly identified as mitigating factors, that Mr Kipping does not have any relevant previous convictions and is on a pension with no other source of income. His financial circumstances were therefore taken into account, as were references as to his good character.
58 Electrical Workers Registration Board v Johnston [2022] NZDC 21163.
59 Johnston v Electrical Workers Registration Board [2022] NZHC 3190.
60 Johnston v Electrical Workers Registration Board [2023] NZCA 541.
61 Sentencing Decision, above n 4, at [8] the Judge refers to a number of cases and the fines imposed but does not include the case citations so this Court cannot reference the citations for those other cases.
[104] Mr Kipping submits that the Judge erred in considering the Disputes Tribunal rulings as to the ownership of the heat pumps. In this regard, the Judge noted that:
[10] This offending came to light as a result of a dispute between the business that he was representing and the owners of the property and he took it upon himself to remove the items believing that they were entitled to be taken because they had not been paid for. The company that did the building had gone into liquidation and Mr Kipping was reliant in fact upon a multiclause which he thought was operable despite the fact that there had been Disputes Tribunal rulings to the contrary. Having said that I understand the reason for Mr Kipping taking the actions that he did. I, however, have to sheet home to others that to act in this sort of manner is not permitted and accordingly I am going to deal with him by way of a fine. There are two charges. I am going to break the fine between the two charges. On each charge he will be fined $1,500. I direct that 90 per cent of the fine to be paid to the Electrical Workers Registration Board and that I make no order for costs in respect of Mr Kipping, although costs were sought by the Electrical Workers Registration Board I decline to award costs against Mr Kipping who was self- represented at the trial and it would be improper to further penalise him because of that stance.
[105] The Dispute Tribunal’s rulings were after the heat pumps were removed and Mr Kipping accepts that if the heat pumps had been removed with knowledge of those rulings, that would be theft. Mr Kipping requested that the Court clarify that this is not what happened. I accept that Mr Kipping did not remove the heat pumps after the Dispute Tribunal’s rulings, and he therefore did not deliberately act contrary to those rulings. The findings of the Dispute Tribunal are relevant in that they disclose that Mr Kipping was willing to act on his own view of the law, which the Dispute Tribunal did not uphold. The Judge was seeking to reinforce the point that persons should not take the law into their own hands, which is what Mr Kipping sought to do by removing the heat pumps before any determination as to whether there was any legal right to do so.
[106] The Judge also noted that he had to “sheet home” to Mr Kipping and others that to act in this way is not permitted. Deterrence is particularly relevant when community safety is an issue, as it is here. Further, Mr Kipping in doing what he did, created a safety risk because the evidence established that the isolator switch was able to be switched on, thereby creating a risk of electrocution.
[107]The Judge did not err in imposing a fine of $1,500 for each conviction.
Should the sentence be reduced because of undue delay?
[108] No arguments were advanced at trial nor at sentencing that Mr Kipping’s rights under the Bill of Rights had been infringed and the trial Judge was not therefore required to consider the arguments that were before this Court on appeal.
[109] Having found that Mr Kipping’s right to be tried without undue delay has been infringed, it is appropriate to consider whether Mr Kipping’s sentence should be reduced to reflect that infringement. In R v Williams the Supreme Court did not consider a stay was justified but that the delay to trial had been more than adequately recognised by a reduction of 25 per cent from the sentence that would otherwise have been imposed.62
[110] It is appropriate that the sentence be reduced to reflect the undue delay in prosecuting Mr Kipping. I therefore apply a 25 per cent reduction to each fine resulting in an end fine of $1,125 for each conviction ($2,250 in total).
Result
[111] The conviction appeal is dismissed. The sentencing appeal is upheld. The fines of $1,500 are set aside and a fine of $1,125 for each conviction is imposed ($2,250 in total). Ninety per cent of the fine will be payable to the Board.
Tahana J
62 R v Williams, above n 9, at [22] to [23].
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