Roberts v Otago Regional Council

[2020] NZHC 1429

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-38

[2020] NZHC 1429

BETWEEN

ALAN JOHN ROBERTS

Appellant

AND

OTAGO REGIONAL COUNCIL

Respondent

CRI-2019-412-39

BETWEEN

MARUIA MINING LIMITED
Appellant

AND

OTAGO REGIONAL COUNCIL

Respondent

Hearing:

15 June 2020

Counsel:

J M Shingleton for Appellants

J M O’Sullivan and M A Shaw for Respondent

Judgment:

23 June 2020

JUDGMENT OF SIMON FRANCE J

[1]    Mr Roberts is the managing director of Maruia Mining Ltd. The company has a permit to mine for gold on a site near Lawrence.1 It is an alluvial gold mining operation. The mine sits in a gully with slopes above it. At the bottom of the site there is a road, with the boundary of the mine area starting a short distance up the access road that runs from the main public road.

1      Pursuant to the Crown Minerals Act 1991.

ROBERTS v OTAGO REGIONAL COUNCIL [2020] NZHC 1429 [23 June 2020]

[2]    One day in May 2018, an enforcement officer noticed discolouration in a tributary of the Waitahuna River.2 He investigated further and discovered a significant quantity of water discharging onto the ground at a spot that lies between the road and the boundary of the mining site. The sediment-filled water came from across a property to the side of the mine property, crossed the access road, and then entered a culvert that ran under the public road. Ultimately the discharge ended up in the unnamed tributary. The tributary was discoloured and plainly was being contaminated by the discharge.

[3]    The enforcement officer returned the next day and observed the same thing happening. In July he returned to interview persons associated with the mining operation, and again observed both discharge and a contaminated tributary. Two charges were laid (being the first visit on 1-2 May, and the second visit in July) against each of the company and Mr Roberts.3 Under the Resource Management Act 1991, it is an offence to discharge any contaminant onto land in circumstances which may result in that contaminant entering water.4 After a four-day judge only trial, all charges were found to be proved.5 A total fine of $60,000 plus a $25,000 costs order were made.6 Both defendants appeal conviction and sentence.7

Conviction appeal

[4]    The conviction appeal is of relatively narrow scope. The enforcement officer saw and took photos of the water where it first appeared down near the bottom of the site. It came from a bushy forest area on the east of the property, flowed across the dirt access road and went into the culvert. As noted, this point of egress of the discharge is below the boundary of the mine site. The land from which the water was flowing is also not part of the mine site. From these facts, the defendant submitted at trial, and repeats on appeal:

2      He had noticed the discolouration for the first time the day before and had decided to come back the following day to observe the site in better light.

3      Resource Management Act 1991, ss 15(1)(b), 338(1)(a) and 340; maximum penalty a $600,000 fine for the company and a $300,000 fine for Mr Roberts.

4      Sections 15(1)(b) and 338(1)(a).

5      Otago Region Council v Maruia Mining Ltd and Roberts [2019] NZDC 17475.

6      Otago Regional Council v Maruia Mining Ltd and Roberts [2019] NZDC 20752; and Costs in Criminal Cases Act 1967, s 4(1).

7      Criminal Procedure Act 2011, ss 229 and 244.

(a)there was no evidence of discharge directly flowing off the mine site and into the culvert;

(b)the evidence did not explain how discharge from the mine site would emerge in the position from which this water was appearing; and

(c)there was an explanation of a source alternative to the mine for water appearing in the position where this water was appearing.

[5]    These three factors are submitted to mean that a reasonable doubt must have existed that the mine was the source of the discharge. In support of this primary ground, it is submitted that changes made to his evidence at trial meant the Court should have treated the evidence of the enforcement officer less favourably; that the expert evidence of the prosecution expert, Mr Morris, does not explain how the mine could be the source of the observed water flow; and that insufficient regard was given to the facts that both the area from which the water apparently flowed, and the point of egress, were not part of the mine site.

[6]    Having considered the evidence, I am satisfied the appeal must fail. The evidence of the witness, Mr Morris, provided a clear basis on which the Court could convict, and I see no reason to reach a contrary view on the evidence. It presents a compelling picture and, contrary to the appellant’s case, does state clearly that mine- site discharge could emerge at the point of egress.

[7]    By way of general context for the appeal, it can be noted that it was admitted there was a discharge. The obvious source of the discharge that was being seen is the large alluvial mining operation situated above the discharge. Evidence is needed to establish, to the appropriate standard, the link between these two, but it is relevant on appeal to note that the primary finding of fact represents an obvious inference being drawn.

[8]    At trial two potential sources of the mine discharge were at play. The first was the proposition that the system of dams and catchment areas might have failed such as to allow dirty captured water (being water with sediment) to escape. There was

disputed evidence, which the Court considered itself unable to resolve, that this may have occurred in the past. A complication, noted in the Morris report, is that subsequent to the dates of the charges, significant work on the dams was carried out by other persons. This work occurred prior to Mr Morris inspecting the property. The Court concluded that it could not infer that a failure of the dam system was a cause of the discharge. I see no reason to differ.

[9]    The second option was that water running over the site became contaminated and escaped the site. Rain is the obvious initial source of such water. The mine is situated in a gully above which there are significant slopes. The rain will both flow down the slopes and also land directly on the open work site. The overall catchment area is large – about 58 ha, of which 12 ha is exposed land. A rainfall event is inevitable. The task of the mining operation is to prevent such water escaping. In this regard Mr Morris noted many deficiencies. For example, a standard device is to dig diversion drains above and around the exposed areas. The clean water flowing down thereby diverts around the site and does not become dirty. These drains were not present as they should have been.

[10]   A consequence of the absence of the diversion drains is that the mine’s dirty water systems have a much larger amount of water to deal with than they should do. Mr Morris was of the view that the systems on the mine were not good but would have coped with the likely rainfall events that preceded the days that are the subject of charges had diversion drains been there.

[11]   I add here that there were features of the mine operation, in addition to the absence of diversion drains, that supported the inference the Court drew. For example, the exposed area of land was much larger than that which had been allowed by the consent. And further, of the land that was exposed by mining, the consent required progressive replanting as the mine site moved. This had not happened. The relevance of this is that more planting and growth would decrease the amount of exposed land over which the water would travel. It would also accordingly lessen the amount of dirty water the mining systems needed to cope with. Finally, Mr Morris noted the pipes connected to the on-site dams were not big enough for their task and so would be prone to block.

[12]   The task on appeal is not to rehearse the evidence given at trial.8 It is for the appellant to show that an error has been made.9 The key challenge made by the appellant is to the weight given to the evidence of Mr Morris. Having viewed his evidence I consider it was clear and not really shaken. It provided a basis on which the Court could conclude, as it did, that water running over the site was a significant source of the discharge. Accordingly, I address only those matters raised by the appellant concerning which specific comment is needed.

[13]   Mr Roberts had given evidence that the land to the east of the mine site, being the land (looking east) above the discharge flow, could be the source. It had open areas that had been dug up at times by vehicles and pigs. Water from these areas flowed down to the relevant culvert after rain. The owner of the land was called by the defendants and gave similar evidence.

[14]   Mr Morris accepted there could be some run-off as described but considered it would be at the smaller end of the range. This was primarily because of the small catchment area this  eastern land  represented.  As well  as a  small  area in  itself,  Mr Morris contrasted its catchment area with the much larger and more exposed mine area. In re-examination Mr Morris was asked directly about the source of the water seemingly emanating from the adjacent property. He said the mine was the probable source, with the water making its way down the slope in various paths. Those pathways would be influenced by the mining activity of the day and where things such as spare pipes or other obstructions were stored. The water pathways would change to reflect mining change. He did not consider there were features of the neighbouring property that would account for the discharge.

[15]   A focus of the appellant’s case was on the main access road that runs down from the mine site. It is inland by several metres from the eastern boundary. Concerning this access road, the appellant notes that a map Mr Morris filed prior to trial shows that this access road (and not the eastern discharge) would be the natural

8      Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]: if an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal will be allowed, but the role of the appellate court is not to consider the issues de novo.

9 At [38].

water route for dirty water emanating from the mine site. The appellant submits there is no credible evidence that water was running down the road on the relevant days.

[16]   I describe it as “credible evidence” because the enforcement officer said, albeit for the first time at trial, that on 1 May he could in fact recall water flowing down that road. So to that extent there was direct evidence. However, the appellant says this was a change of evidence that was not credible. There had been no mention of it prior to trial. The officer had prepared for trial a diagram which set out the water flow he had observed and again there was no suggestion of water coming down the access road. Finally, submits the appellant, the photographs and video records of the day do not support the proposition there was water flowing down the access road.

[17]   I agree with the appeal point to this extent. Had it been an essential part of the prosecution case that it prove that discharge had come down the road, I doubt it would have succeeded. But it is not something the prosecution had to prove. There was ample other visible discharge it could rely on, and even then it is not strictly necessary to have direct proof of discharge occurring at one point in time. What has to be proved is that the tributary was contaminated by discharge from the mine site. It helps to have direct evidence of the discharge happening, but it is not essential. A process of inference is still available.

[18]   Further, I consider the appellant overstates the evidence of Mr Morris about the route the water would follow. The water path identified on the map is not the product of an analysis by him of the site and its ground. When Mr Morris visited the mine, it was dry. The route depicted on the map comes from other council documents and is overlaid on the map. Mr Morris acknowledged it seemed to him that generally that is where water would flow but it is not a statement that there is some kind of exclusive channel.   As he noted, water has its own way of finding a route down.   Mr Morris gave examples of what would influence the path.

[19]   Other appeal points made in the written submissions were not emphasised in oral argument. The matters already addressed represent the key planks of the appeal. However, for completeness I observe there was no failure to put the prosecution case to Mr Roberts. There was ample opportunity for Mr Roberts to give evidence on the

central themes, and to advance his own case, which he did. Likewise, I do not consider the District Court erred in not referring to the exact boundaries of the mine site. These were relevant only to the extent one accepted the possibility that the eastern property would account for all the discharge. At that point, by way of confirmation, one would note the egress point was not on the mine site. But if the premise fails, as it did, the exact boundaries are not a relevant aspect.

[20]   Overall, the evidence established, and clearly so, that the mine arrangements were flawed in terms of managing discharge. This was very relevant to whether the obvious inference the flows from proximity of the mine to the discharge should be drawn. An alternative source of discharge was considered but was rejected to the appropriate standard as being capable of being the only source of the discharge. I agree with these conclusions.

[21]The appeal against conviction is dismissed.

Sentence appeal

The fine

[22]   The District Court took a starting point of $60,000.10 The Court recognised that a higher starting point of $100,000 might have been appropriate if not for the fact that there were no proven effects of the discharge and that the eastern property may have contributed discharge to an extent not able to be verified.11 It was a potential contribution that should decrease the culpability of the defendants.

[23]The starting point was also informed by three aggravating factors:12

(a)a systemic failure of the defendants to put in place the appropriate land mitigation measures;

10 Otago Regional Council v Maruia Mining Ltd and Roberts, above n 6, at [27].

11 At [25]-[27].

12 At [23]. In taking into account these factors, particularly the past offending, when setting the starting point, the Judge did not follow the normal approach. However, the key point is that the factors were not double counted, and following a different analytical sentencing route is not of itself an appeal point.

(b)the failure to put in place diversion drains; and

(c)the existence of previous offences that pointed to poor mine management and the need to improve matters, and address specific failures.

[24]   The appellant submits that the Court erred in relation to (a). When giving verdict the Court had rejected the proposition that the dams were the source of discharge. It is submitted that to then count them as an aggravating factor was inconsistent.

[25]   Two responses can be made. First, concluding that it had not been proved that a dam failure had caused the charged discharge is not the same as noting that the underlying systems were flawed. Second, the dams were not the only basis underlying (a). The Judge also referred to the size of the mine being much larger than the consent allowed, and to the lack of rehabilitation repasturing as required. These measures would have significantly mitigated the volume of sediment flowing over and off the site. More generally, there was unchallenged expert evidence that the mine systems were inadequate. The fact of discharge could be seen as an inevitable consequence, and the Court was correct to treat these aspects as an aggravating factor.

[26]   The risks with mining operations such as this are well known. It is correct for the Court to hold the business accountable when poor practices and non compliance with the conditions  of  the  consent  lead  to  rivers  being  polluted  in  this  way.  Mr Shingleton for the appellants did not refer to authorities that would suggest the fine here is out of step with comparable cases. The appeal against the size of the fine is dismissed.

The order

[27] The District Court made an order of $25,000 under s 4(1) of the Costs in Criminal Cases Act 1967 (the Act).13 Although submissions were presented to the District Court on the applicability of that Act, the sentencing remarks do not address

13 At [29].

the scheme or give reasons for the order other than to say the amount is a contribution to the Otago Regional Council’s witness costs. Given the absence of reasons, I will consider the matter afresh. The appellant does not challenge an award of scale solicitor costs, nor an additional substituted award under the Witness and Interpreters Fees Regulations 1974. What is challenged is the extent to which the District Court order exceeds the total represented by the application of these two scales.

[28] The general power is described broadly in s 4(1) of the Act as being a power, subject to regulations, to order a convicted defendant to pay such costs as the Court thinks just and reasonable. The Costs in Criminal Cases Regulations 1987 then provide a costs scale for when orders are made.14 The current rate is $226 per half day, which for the present case would equate to an award of $1,808.15

[29]   Section 13(3) of the Act provides, however, that where regulations prescribe a maximum scale, the Court may make an order in excess of that if that is “desirable” having regard to the “special  difficulty,  complexity or importance” of the  case.  In T v Collector of Customs,16 Tipping J noted that “special” added a dimension over and above the three concepts it qualified – special difficulty, special complexity and special importance. It means the element must be significantly greater than that which is ordinarily encountered.17

[30]   I recognise the advantages the trial Judge has, but in the absence of reasons it is necessary to look at the matter only with hindsight. Seen through that lens there is no feature that stands out as necessitating an above scale award. The need for expert evidence is not at all uncommon. The bulk of the trial evidence came from fact witnesses. The trial was completed in under a week and in under the time estimate. The Judge was able to give an oral verdict on the afternoon following the conclusion of evidence. Closing submissions were not required. As this appeal decision highlights, it was largely a factual case albeit, I accept, the ultimate conclusion is very

14     Schedule 1.

15     This does not include allowance for the verdict which was delivered on the day following the end of the evidence, and sentencing.

16     T v Collector of Customs HC Christchurch AP167/94, 28 February 1995.

17     At 2. See also Roberts v Northland Regional Council [2014] NZHC 284 at [111]; and Interclean Industrial Services Ltd v Auckland Regional Council [2000] 3 NZLR 489 at [37]-[38].

much informed by the expert evidence. I do not consider the case meets the test for above scale costs pursuant to s 13(3) of the Act.

[31]   Consistent with the terms on which the appeal was advanced, I award scale solicitor costs under the Costs in Criminal Case Regulations and standard witness fees under the Witness and Interpreters Fees Regulations.

Conclusion

[32]The appeal against conviction and the resulting fine are dismissed.

[33] The appeal against an order made under the Costs in Criminal Cases Act 1967 is allowed. The order is quashed and a replacement order is made in the terms set out in [31].

[34]   For avoidance of doubt, all other orders made on sentencing are confirmed. No question of costs arises on the appeal.

Simon France J

Solicitors:

First Law Limited, Lincoln for Appellants

Luke Cunningham and Clere, Wellington for Respondent