McNally v Attorney-General - [2010] NZCA 571

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND
CA573/2009
[2010] NZCA 571
BETWEENJAMES EDWARD MCNALLY
Appellant

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND ON BEHALF OF THE MINISTRY OF FISHERIES
First Respondent
ANDTHE DISTRICT COURT AT NAPIER
Second Respondent
ANDESPLANADE NO 3 LIMITED
Third Respondent
ANDSTEPHEN GRAHAM HARVEY
Fourth Respondent

Hearing:14 October 2010

Court:O'Regan P, Arnold and Harrison JJ
Counsel:P N Ross and J W A Rainger for Appellant
J Pike and C R J Fleming for Respondents

Judgment:30 November 2010 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe appellant must pay the first respondent costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1]       The appellant, Mr McNally, was suspected of selling crayfish in breach of the Fisheries Act 1996. Fisheries officers seized a vehicle he was believed to have used in the commission of the offences under s 207(1)(a) of the Act. Section 207(4) requires that where property is seized, the decision whether to lay an information or charge for the alleged offence “shall be made as soon as reasonably practicable after the property is seized”.
[2]       The decision to prosecute the appellant was made approximately eight months after fisheries officers seized the vehicle. In the District Court, the appellant sought a stay, on the ground that the prosecuting authorities had not complied with s 207(4). Judge Rea granted the application, considering that he was bound by the decision in Grigson v Ministry of Fisheries,[1] in which Giles J held that where the decision to prosecute was not made as soon as reasonably practicable after seizure, the defendant was entitled to have the proceedings stayed.[2]
[1]      Grigson v Ministry of Fisheries [1998] 3 NZLR 202.
[2]      At 221.
[3]       The Attorney General, on behalf of the Ministry of Fisheries (the Ministry), applied for judicial review of the District Court’s decision. Miller J granted the application, quashing the order for a stay and remitting the matter back to the District Court.[3] In doing so, he disagreed with Grigson.[4] Mr McNally now appeals to this Court.
[3]      Attorney-General v District Court at Napier HC Napier CIV-2009-441-270, 19 August 2009.
[4] At [35].
[4]       For the sake of completeness, we note that the third and fourth respondents are respectively the owner and the skipper of a vessel suspected of unlawful fishing. The vessel was seized and they were later charged with offences against the Act. They also alleged that the requirements of s 207(4) were not complied with, and Judge Rea stayed their prosecutions as well. They did not take an active part in the present appeal but advised through their counsel, Mr Sullivan, that they support the submissions made on behalf of Mr McNally. Accordingly, their cases stand or fall in accordance with our decision in relation to Mr McNally.
Factual background
[5]       The following statement of facts is taken…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading McNally v Attorney-General

Details

AGLC: McNally v Attorney-General [2010] NZCA 571
Case: [2010] NZCA 571
Decision Date: 30 November 2010

CaseChat Overview and Summary

The case of McNally v Attorney-General involved an appeal against the decision of the High Court to grant judicial review quashing an order for a stay made by the District Court. The appellant, Mr McNally, was suspected of selling crayfish in breach of the Fisheries Act 1996 and his vehicle was seized by fisheries officers. The decision to prosecute Mr McNally was made approximately eight months after the seizure of the vehicle. The District Court granted a stay on the ground that the prosecuting authorities had not complied with s 207(4) of the Act, which requires that the decision whether to lay a charge for the alleged offence be made as soon as reasonably practicable after the property is seized. The Attorney General, on behalf of the Ministry of Fisheries, applied for judicial review of the District Court’s decision, which was granted by Miller J, who quashed the order for a stay and remitted the matter back to the District Court. Mr McNally now appeals to the Court of Appeal.

The legal issues the court was required to decide included whether a stay is the appropriate remedy for breach of s 207(4) and whether the District Court judge was entitled to grant a stay in light of the decision in Grigson v Ministry of Fisheries. The court considered that a stay is not the usual remedy for delay and that it is difficult to see why a breach of the requirement for expedition must in every case lead to a stay of the relevant prosecution. The court also considered that Miller J was not bound by the decision of Giles J in Grigson and was entitled to conclude that his decision was based on an error of law.

The appeal was dismissed and the appellant was ordered to pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

Orders