Ruki v Bay of Plenty Regional Council

[2020] NZHC 669

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-000077 CRI-2019-463-000078

[2020] NZHC 669

BETWEEN

THOMAS WILSON RUKI AARON DONALD JOHNSTONE

Appellants

AND

BAY OF PLENTY REGIONAL COUNCIL

Respondent

Hearing:	30 October 2019
Counsel:	TJ Conder and LCR Burkhardt for Appellants AA Hopkinson for Respondent
Judgment:	2 April 2020

JUDGMENT OF FITZGERALD J

[As to appeal against conviction]

This judgment was delivered by me on Thursday, 2 April 2020 at 2 pm.

Registrar/Deputy Registrar

Solicitors:

Holland Beckett, Tauranga. Cooney Lees Morgan, Tauranga.

RUKI v BAY OF PLENTY REGIONAL COUNCIL [2020] NZHC 669 [2 April 2020]

Introduction

[1]    After a five-day Judge-alone trial in District Court, the appellants, Mr Ruki and Mr Johnstone, were convicted in relation to an unlawful discharge of dairy effluent onto land in circumstances which may have resulted in that contaminant entering water.1    They were subsequently sentenced to  a fine of  $16,150 (in the case of     Mr Ruki) and $8,550 (in the case of Mr Johnstone).2

[2]Mr Ruki and Mr Johnstone now appeal against their convictions.

[3]    A key issue at trial was the location of a travelling irrigator from which the discharge was said to have emanated. Mr Ruki said he had found the travelling irrigator malfunctioning (being stationary, but still spraying effluent) at a location about 21 metres from a fence line (the 21-metre location), at which point he turned it off and turned it around, which resulted in it being about seven metres from the same fence line (the seven-metre location). He said he did not turn the irrigator back on at that seven-metre location. The prosecution case, however, was that the irrigator had malfunctioned at the seven-metre location, meaning that effluent sprayed for some time in that location, travelled over an embankment near the fence line, down into the adjacent paddock and into a spring-fed drain.

[4]    The Judge found that the irrigator had malfunctioned at the seven-metre location. The appellants say that a fundamental premise upon which the Judge made this finding was his mistaken view that the irrigator could not be moved by hand from the 21-metre location to the seven-metre location.3 The appellants say the irrigator can in fact be moved 14 metres by hand during a turning operation, given that the irrigator turns in a wide “half-moon” or arc-like way. The appellants seek to introduce new evidence on the appeal to clarify and emphasise the ability to turn and move the irrigator in this way. The appellants say that if the Judge had known the irrigator could

1      Being a contravention of s 15(1)(b) of the Resource Management Act 1991 (RMA), and thereby an offence pursuant to s 338(1) (maximum penalty of two years’ imprisonment or a fine not exceeding $300,000, pursuant to s 339). I will refer to this as a “qualifying discharge”.

2      Mr Ruki and Mr Johnstone were also ordered to each pay Court costs of $130 and solicitors’ costs of $113.

3      It being accepted that Mr Ruki did not have available to him the necessary equipment to move the irrigator any significant distance.

be moved manually a distance of some 14 metres during a turn, it is very likely he would have found the charges not proved.

[5]    Mr Johnstone raises a further ground of appeal. He says the Judge found the charge against him proved on the basis he was vicariously liable for Mr Ruki’s actions.4 Mr Johnstone says that at no time prior to or during the hearing was the prosecution case against him advanced on the basis of vicarious liability. The Council accepts its case against Mr Johnstone was that he had personally committed an offence pursuant to s 338 of the RMA by permitting a qualifying discharge. Mr Johnstone therefore says the first notice he had that his liability might be determined on the basis of vicarious liability was when he received the Judge’s decision. He says this led to a miscarriage of justice, because if he had known his liability would be considered on that basis, he would have called additional evidence at trial and his counsel would have made legal submissions on the question of vicarious liability. Mr Johnstone says this may well have resulted in a different outcome.

[6]The balance of this judgment is structured as follows:

(a)I first set out the background in a little more detail.

(b)I then summarise the main aspects of the Judge’s decision.

(c)I then summarise the legal principles governing an appeal of this kind.

(d)I then set out the parties’ respective submissions.

(e)Finally, I discuss and set out my findings on the grounds of appeal outlined above.

4      Pursuant to s 340 of the RMA. Both Mr Johnstone and Mr Ruki were employees of the trustee owners of the land. Mr Johnstone was the farm manager, Mr Ruki the second in charge.

Factual background – more detail

[7]    In advance of the hearing, the parties had helpfully agreed certain facts which were recorded in an agreed facts document.5 It is useful for present purposes to set out key aspects of that document:

1.If proven, the discharge alleged in CRN1704750092  and/or  CRN 1704750093, was not expressly allowed by a national environmental standard or other regulations, a rule in a regional plan or proposed regional plan for the same region, or a resource consent.

The farm

2.The alleged offending occurred at a farm owned by the trustees of the Otanemutu Lands Trust at or near 1250 State Highway 35, Opape (the farm).

3.The farm is:

(a)Located approximately 1.5 kilometres from the sea at Opape.

(b)Māori freehold land.

(c)Approximately 176 hectares in size.

4.Approximately 480 to 500 cows are milked on it in any one season.

5.There are spring-fed drains on the farm that flow through the farm into a main farm drain.

6.The farm’s main drain flows into a waterway that eventually terminates  at  the  mouth  of  the  Waiaua  River,  approximately 2 kilometres from the farm.

7.The Waiaua River then flows a few hundred metres through the Omarumutu Coastal Zone before entering the sea at Opape Beach.

Defendants

Aaron Donald Johnstone

8.At the time of the alleged offending, the defendant Aaron Donald Johnstone:

(a)was the farm manager at the farm;

(b)had been working on the farm for 7 years; and

(c)lived on the farm.

5      Evidence Act 2006, s 9.

Thomas Wilson Ruki

9.At the time of the alleged offending, the defendant Thomas Wilson Ruki was the Senior Farm Assistant at the farm.

The farm's irrigation system

10.Effluent is periodically pumped out from the farm's storage pond to a travelling irrigator.

11.At the time of the alleged offending there was no GPS failsafe device fitted to the irrigator that would turn off the irrigator if it stopped moving.

[8]    The agreed statement of facts also recorded that no issue was taken with the accuracy of testing results of the samples taken by the respondent’s (the Council’s) enforcement officer who visited the farm on the day in question (a Mr Wiki Mooney).

[9]    The unlawful discharge was said to have occurred at some point on 18 October 2016. The travelling irrigator had evidently been running in a paddock (referred to at trial as “paddock 7”) the previous day, but by the end of the day, had not finished its run. Given the irrigator needed to be monitored regularly and turned on and off by hand, it was normal practice to leave it off at night.

[10]   Early the following morning (18 October 2016), and in his role as farm manager, Mr Johnstone said he gave instructions to Mr Ruki that the irrigator had about an hour and a half left to go on its run in paddock 7, and that Mr Ruki was to turn the irrigator on before breakfast and then turn it off after breakfast, turn it around and then wait for further instructions. Mr Johnstone himself was going to be away from the farm for some time that day in a meeting with the trustee owners.

[11]   It was not in dispute that at some point after being turned on, the irrigator malfunctioned, which led to it staying in one place, rather than travelling along a wire as part of its “run”. Because the irrigator was not at that time fitted with a GPS device which would have automatically turned it off when it malfunctioned, it continued to spray effluent at the one location until turned off manually.

[12]   Mr Ruki said that sometime shortly after breakfast, he noticed the irrigator was stationary and went to investigate. He said he turned it off at that point, when it was

at the 21-metre location. He said that, as instructed by Mr Johnstone, he then manually turned the irrigator around, moving it as he did so to the seven-metre location. In order to move it manually, it was not in dispute that he would have needed to decouple the pipes through which effluent is pumped from the farm effluent storage pond to the irrigator. That is what Mr Ruki said he did. He said that after turning and moving it to the seven-metre location, he then connected the pipes back up. He accepted the irrigator could not operate at the seven-metre location, being too close to the fence line with adjoining paddock 8 (in which a spring-fed drain is located). Mr Ruki said that he didn’t turn the irrigator back on at this point, however, and in accordance with  Mr Johnstone’s instructions, he left the irrigator at that location to await further guidance.

[13]   Later that day at around 3 pm, Mr Mooney arrived at the farm to carry out a routine compliance inspection. He said that as he approached the area, he noticed a dark ring around the irrigator, which raised a concern that it might have been irrigating in the same spot for some time. As he approached the farm’s milking shed, he spoke briefly to a farm worker (a Mr Walker) who, with Mr Ruki, was attending to the afternoon milking of the cows. Mr Walker pointed out how to get to the irrigator and Mr Mooney went up to investigate.

[14]   Mr Mooney’s evidence was that he found the irrigator positioned at the seven- metre location and that the area around it was wet. He also said he observed a reasonably widespread flow of effluent from the area where the irrigator was, over the embankment at the boundary of paddocks 7 and 8 and down towards the spring-fed drain in paddock 8. He also said there was a strong smell of effluent. Mr Mooney took a series of photographs of what he saw, as well as video footage on his mobile phone, all of which were produced in evidence at the trial.

[15]   As noted, a key issue at the trial was the location of the irrigator when it malfunctioned. The prosecution did not suggest there could have been a qualifying discharge from the 21-metre location (being too far away from the boundary with paddock 8). Rather, its case was that the irrigator had malfunctioned and stopped moving at the seven-metre location, continued to spray effluent for some considerable time at that location, before being spotted by Mr Ruki early in the afternoon and being

turned off by him. The defence, on the other hand, said that the prosecution had not proved beyond reasonable doubt that the irrigator had malfunctioned at the seven- metre location, and that the account given by Mr Ruki was a plausible and credible explanation. The defence said it was a reasonable possibility that what Mr Mooney saw and photographed during his visit on 18 October 2016 was in fact the result of approximately 480 cows having been in paddock 8 the previous day.

The District Court decision

[16]   After setting out the background facts and summarising the witnesses called by each party,  the Judge then set out the elements of the offence by reference to     ss 15(1)(b) and 338(1)(a) of the RMA.

[17]Section 15 of the RMA relevantly provides as follows:

15   Discharge of contaminants into environment

(1) No person may discharge any—

…

(b) contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or

…

[18]   Section 338(1)(a) of the RMA relevantly provides that every person who “contravenes, or permits” a contravention of s 15 of the RMA commits an offence.

[19]The Judge noted that to “permit” a contravention encompasses:6

(a)providing or affording an opportunity for acts or omissions;

(b)allowing acts or omissions to be done or to occur;

(c)acquiescing to acts or omissions;

6      Referring  to  Crafar  v  Waikato   Regional  Council  HC  Hamilton  CRI  2009-419-000067,   13 September 2010 at [51].

(d)abstaining from prevention of acts or omissions; and

(e)tolerating acts or omissions.

[20]   I interpolate to note that in his discussion of the relevant statutory provisions, the Judge did not refer to s 340 of the RMA. This provides that a person will be vicariously liable for any offence under the RMA committed by that person’s “agent (including any contractor) or employee”.7

[21]   The Judge noted that there are certain exceptions to s 15(1), though recorded that Mr Ruki and Mr Johnstone had admitted that if the discharge were proved, none of those exceptions would apply. The Judge also noted that pursuant to s 341(1) of the RMA, it is not necessary for the prosecutor to prove that a defendant intended to commit the offence, or to disprove a defence of total absence of fault (available under s 341(2)). The Judge also noted that neither Mr Ruki nor Mr Johnstone had given the required notice that a “no fault” defence would be advanced.

[22]   The Judge then summarised each of the prosecution and defence cases. The only point from this summary of particular relevance to matters discussed later in this judgment is the Judge’s record of Mr Ruki’s evidence as to what had occurred:8

After breakfast at around 9 am Mr Ruki checked the irrigator and saw that it had stopped moving. He accordingly turned the pump off. After turning it off, Mr Ruki says he went into paddock 7 to turn the irrigator around. Mr Ruki saw that the irrigator had stopped moving before reaching the end of its run but was still at a distance of around 21 metres from the fence line. He says he observed wetness around the irrigator indicating it had been stationary for a period of time. He saw some effluent on the ground around it but says none of that effluent had flowed in the direction of paddock 8 and the spring-fed drain. He did not inspect the irrigator to see why it had stopped. As instructed by Mr Johnstone, Mr Ruki turned the irrigator around and did not reactivate it. He noted after turning it around that the irrigator was too close to the fence line and could not operate in that location, but he did not have a tractor or other sufficiently powerful farm vehicle to move it.

[Emphasis added]

7      RMA, s 340(1)(a). See [31] below for the full text of s 340.

8      Bay of Plenty District Council v Ruki [2019] NZDC 7581 at [50].

[23]   The Judge then went on to note that there were four central issues in dispute, being:9

(a)the location of the irrigator when it broke down;

(b)the length of the period between the breakdown and the pump being turned off by Mr Ruki;

(c)the explanation of cows being in paddock 8 the night before the inspection; and

(d)the respective roles of the defendants.

[24]   The Judge said that he had carefully reviewed the evidence of Mr Mooney and that of Mr Ruki, including Mr Ruki’s formal interview by another Council officer. It is also evident from the Judge’s decision that he had carefully studied Mr Mooney’s photographs, including in conjunction with various aerial photographs of the farm. These steps were taken by the Judge in the context of an expert called by the defence, a Dr Care, being highly critical of Mr Mooney’s photographs not being GPS located. But the Judge stated:10

… I am able to track the locations from where they were taken by reference to landmarks such as the embankment, the raup[ō] in and around the spring in paddock 8, and the fence between paddocks 7 and 8. There are also lesser features such as gorse bushes, turned earth and old cow pats which are plainly visible in certain sequences of the photos and which enable a viewer to look from one photograph to the next to see how they depict portions of paddocks 7 and 8.

[25]   The Judge then made a number of findings which are relevant to the appellants’ case on appeal. It is therefore helpful to set them out in full:

[66]      I find, beyond a reasonable doubt, that the irrigator broke down at or near the location where it is depicted in Mr Mooney’s photographs, that is, about 7 metres east of the fence line between paddocks 7 and 8. I do not accept the evidence of Mr Ruki that it broke down approximately 14 metres further [a]way, that is, a total distance of 21 metres from the fence line. The evidence on which this finding is primarily based is the evidence of Mr Ruki that the irrigator is not able to be moved by one person and without the aid of

9 At [61].

10 At [65].

a farm vehicle such as a small tractor or a side by side (a small four- wheeled off-road vehicle) and that he did not have such a vehicle available to him that day. While I can understand how Mr Ruki might have been able to turn the irrigator around (as he says he did) without assistance, I cannot understand how he could have moved the irrigator 14 metres across paddock 7.

[67]      I also cannot understand why Mr Ruki would have moved the irrigator closer to the fence line if he knew that it could not be operated there, rather than further away. I do not accept his evidence that he did move the irrigator in that way.

[68]      Having reached the conclusion that the irrigator broke down approximately 7 metres from the fence line between paddocks 7 and 8, the evidence is clear that the spread of effluent from its nozzles would have reached and gone over the lip of the embankment along which the fence line was located. There was some evidence given about exactly how far the spread would be from the nozzles, including some estimation of the effect of any wind. I find that a spread of at least 10 metres is proved beyond a reasonable doubt: with higher pressure or an easterly wind, it could have been more. There is no evidence of a westerly wind. In any event, 10 metres was sufficient for effluent to have been discharged close to and over the embankment. It was not sufficient to cause the discharged effluent to reach the spring-fed drain directly, as Mr Mooney’s evidence was that the drain was approximately 25 metres from the centre of the irrigator.

[Emphasis added]

[26]   The Judge said that he had carefully considered the evidence relevant to the “alternative explanation”, namely the reasonable possibility that any effluent seen in paddock 8 on the afternoon of 18 October 2016 had been caused by the farm’s herd of cows being in that paddock the previous day and/or night. The Judge noted that there was no direct evidence of the cows having been in paddock 8 the previous day or night, and the suggestion that they had been was based on inference, by effectively “counting back” from documentary evidence of where the cows had been in December 2016 (via the regular rotation of the herd around the grazing paddocks). The Judge noted that “[t]he prosecutor submits that this is an unreliable basis upon which to prove the location of the herd that night”.11 Any submission to this effect misconstrues the burden of proof. The Judge recognised this, and went on to state:12

While that may be so, it could still be sufficient to raise a reasonable doubt that the herd was there that night, if that were essential to an element of the offence. However, that scenario does not by itself displace the evidence of a discharge from the irrigator. The cows may have been in paddock 8 overnight, but clearly they would have been brought from that paddock to the milking shed early in the morning of 18 October 2016, some 3 or 4 hours before

11 At [76].

12 At [76].

Mr Ruki turned the pump on around 8 am. The issue then is whether the other evidence shows that what Mr Mooney found in paddock 8 that afternoon may reasonably have been caused by the presence of the cows or is proven to have been caused by a discharge from the irrigator.

[Emphasis added]

[27]   The Judge went on to note that the evidence of Mr Forster, the prosecution’s irrigation expert, was that the photographs taken by Mr Mooney on the day were highly consistent with a discharge of effluent. He also noted the contrary evidence of Dr Care. The Judge recorded his concern that while having read the High Court Code of Conduct for Expert Witnesses, Dr Care nevertheless understood that her duty to assist was owed to “the defendant” (that is, rather than to the Court). The Judge noted that he did not consider Dr Care to have been dishonest and considered that her opinions were genuinely held, but that her misunderstanding of her duty as an expert witness diminished the weight he could give to her views.

[28]   Ultimately, however, the Judge did not prefer one expert’s opinion over the other, stating:13

Presented with those competing opinions, I have concluded that the opinions and points of dispute between those witnesses are not as helpful to me in understanding the primary facts as is the evidence of the state of paddocks 7 and 8 described by Mr Mooney and depicted in the photographs taken by him. Counsel for the defendant submits that Mr Mooney’s evidence was uncorroborated. No other witness gave any direct evidence of the state of paddock 8 on 18 October 2016. Nonetheless, corroboration is available from the photographs which were not challenged as to the time when they were taken or the general locations in which they were taken.

[Emphasis added]

[29]   The Judge went on to note that he accepted Mr Mooney’s evidence that when walking over paddocks 7 and 8, he found dry areas and wet areas, and that the wet areas which were around the irrigator and down hill from the irrigator on the embankment were wet from effluent rather than from urine or rain. The Judge further stated:14

In my review of Mr Mooney’s photographs, I find clearly that there was a reasonably widespread flow from the top of the embankment near to where the irrigator is shown in these photographs down to the spring-fed

13 At [79].

14 At [80].

drain. There is an apparent boundary visible in some of the photographs between wet ground in that area of flow and dry ground beyond it.

[Emphasis added]

[30]   The Judge noted that this evidence was further supported by analysis of the samples taken by Mr Mooney.

[31]   Having found a qualifying discharge, the Judge then turned to the defendants’ respective roles. Mr Ruki’s grounds of appeal do not relate to these aspects of the Judge’s decision. But given the second ground of Mr Johnstone’s appeal, it is helpful set out the Judge’s observations and findings on this issue in full:

[85]      Turning to the respective roles of the defendants, I refer to the submission of counsel for the defendant that even if Mr Ruki were to be held responsible for the discharge, Mr Johnstone may not be as he gave clear instructions about the operation of the irrigator and was not at the farm when any discharge may have occurred. Had those instructions been followed fully, then the discharge may not have occurred.

[86]      Mr Forster, the Council’s expert on effluent irrigation, acknowledged that Mr Johnstone’s instructions were clear and appropriate, as did Dr Care. Mr Ruki did not dispute that he received those instructions: his defence is that he carried them out.

[87]      Even so, Mr Johnstone frankly acknowledged that as the farm manager he was responsible for the effluent disposal system as one of the primary elements of the farm’s operation and the subject of its resource consent. He did not seek to evade that overall responsibility and his defence was not put in terms which might do so.

[88]      The charge that Mr Johnstone faces is not limited to direct involvement in a discharge and includes permitting a discharge. In the absence of raising any of the defences under s 340(2) RMA, he must therefore be subject to s 340(1). Section 340 RMA relevantly 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; …

(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; …

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.

…

[89]      I find, beyond a reasonable doubt, that Mr Johnstone was responsible for the operation of the farm’s effluent disposal system and that while he gave appropriate instructions to Mr Ruki, he is nonetheless liable in his principal capacity as the farm manager.

[90]      I accordingly find, beyond a reasonable doubt, that both defendants contravened or permitted the contravention of s 15(1)(b) RMA by discharging dairy effluent onto or into land in circumstances which may result in that contaminant entering water without being expressly allowed to do so.

[Emphasis added]

The parties’ submissions

Appellants’ submissions

[32]   Counsel for the appellants, Mr Condor, submits that Judge Kirkpatrick expressly found that the irrigator could not be moved without a vehicle and that this was central to the Judge’s rejection of Mr Ruki’s account. Mr Condor says that both on the evidence before the Judge and when the new evidence is taken into account, this factual conclusion cannot be supported. Rather, it was not impossible for Mr Ruki to have moved the irrigator the 14 metres between where he says it stopped moving and where it was ultimately found by Mr Mooney. Mr Condor says that this is indeed precisely what Mr Ruki described in his evidence.

[33]   If it is accepted that the Judge was in error in finding that the irrigator could not be moved by hand (at least when decoupled from the irrigation pipes and for the purposes of a turn), the question becomes what is the effect, if any, of that suggested error? Mr Conder accepts that the existence of a factual error will only give rise to a successful appeal when that error creates a real risk that the verdict would have been different but for the factual error.

[34] Mr Conder says it is clear from those aspects of the Judge’s decision set out at [25] above that his finding that the prosecution had proved beyond reasonable doubt that the discharge occurred at the seven-metre location turned on his rejection of Mr Ruki’s evidence. Mr Conder says that the Judge did not consider the remaining evidence, including that relating to water samples or Mr Mooney’s photographs of the paddock, until after having made a finding that a qualifying discharge had occurred, and in order to determine whether the discharge was the source of the contamination in the spring-fed drain. Mr Condor says that if the Judge had accepted Mr Ruki’s evidence that the irrigator had not operated at the 7-metre location, or at the very least, that that was a reasonable possibility, then a finding that the charges were proved would not have been open to the Judge.

[35]   In terms of Mr Johnstone’s second ground of appeal, Mr Conder says that fair notice was not given that the case against Mr Johnstone would be determined on the basis of vicarious liability. Mr Conder points to the charge notices against the four trustees of the trust which owns the land in question, and that they were expressly put on the basis of vicarious liability pursuant to s 340 (whereas the charge notices against Mr Ruki  and  Mr Johnstone  were  not).  It  was  therefore  not   unreasonable  for Mr Johnstone to proceed on the basis that vicarious liability would not be considered in relation to him.

[36]   Mr Conder accepts there is no strict requirement that vicarious liability be made plain on the face of a charging document.15 He submits, however, that a defendant that faces the possibility of being held vicariously liable must be made aware of it in some  way,  so  that  they  have  a  proper  opportunity  to  respond.16 Mr Conder notes that that is of particular importance in charges under the RMA where there are strict notice requirements if a defendant wishes to raise certain defences.

15     Southland  Regional  Council  v  Sandstone  Dairy  Ltd  DC  Invercargill  CRN06017500043,     14 December 2006 at [32]–[34]; Fulton Hogan Ltd v Canterbury Regional Council [2019] NZHC 1767, (2019) 21 ELRNZ 161; and Otago Regional Council v Northlake Investments Ltd [2019] NZDC 11710 at [77]–[79].

16  Referring to Gamble v R [2012] NZCA 91 at [31]; and noting this can be achieved otherwise than in the charging document: Talley’s Group Ltd v Worksafe New Zealand Ltd [2018] NZCA 587, [2019] 2 NZLR 198 at [74]–[75]. Mr Condor also refers to fair notice of party liability under s 66 see: R v Shaw CA159/05, 22 November 2005 at [20]–[43], R v Fraser [2009] NZCA 520 at [28]-[34]; and Fa’avae v R [2012] NZCA 528, [2013] 1 NZLR 311 at [45]–[57].

Mr Conder also notes that the prosecution in this case never advanced a case of vicarious liability against Mr Johnstone.

[37]   Mr Conder says that there has been real prejudice to Mr Johnstone in not being aware that the case against him would be determined on the basis of vicarious liability. First, further factual evidence would have been adduced. This would have related to the clean-up and fencing of the spring-fed drain that was carried out the day after the events in question and which would have been relevant to s 340(2) of the RMA. Evidence  of  the  employment  and  other  aspects  of  the  relationship  between   Mr Johnstone and his employer, and as between Mr Johnstone and Mr Ruki, would also have been adduced. Mr Conder says that legal submissions would have also been made to the Judge in relation to whether Mr Ruki was an “agent” or “employee” of Mr Johnstone for the purposes of s 340. For example, Mr Conder notes that while  Mr Johnstone frankly acknowledged in evidence that he was responsible “for the irrigator” and that Mr Ruki was instructed by Mr Johnstone to operate it, that is something different to the existence of an agency relationship between the two men in the legal sense. Both men were employees of the trust and were acting for the trust at all relevant times. Mr Conder accordingly says that whether the nature of the instructions given by Mr Johnstone to Mr Ruki were such as to convert Mr Johnstone to a “principal” for the purposes of s 340 is not immediately clear and was not explored in evidence or argument. Mr Conder also notes that the question of agency for the purposes of s 340 is not a low threshold.17

[38]   If the appeal is allowed, Mr Conder urges the Court to enter an acquittal rather than quash the conviction and send the matter back to the District Court for retrial. Mr Conder says the evidence before this Court is sufficient for an acquittal, namely that if the Court is satisfied the Judge erred in concluding that the irrigator could not have moved 14 metres in the course of turning it, this removes the principal ground on which the Judge rejected Mr Ruki’s account. As noted, Mr Conder submits that without this finding, the Judge would not have been able to find the charges proved beyond reasonable doubt.

17     Relying on Taranaki Regional Council v Farm Ventures Ltd [2019] NZDC 10803.

[39]   Mr Conder also submits that as the sentences imposed on the appellants demonstrate, the offending was not particularly serious. The offending also occurred some four years ago now, and the appellants have already been through a lengthy trial process. Substantial reparation payments have already been made by the trustee owners to the Council, totalling some $30,000.18 Mr Conder says there is no public interest in sending the matter to a second trial.

Council’s submissions

[40]   Mr Hopkinson for the Council submits that a central issue at trial was not whether or not Mr Ruki could have moved the irrigator, but rather the location of the irrigator when it broke down and discharged effluent while stationary. Mr Hopkinson submits that the Judge was satisfied that the irrigator broke down at or near the location shown in Mr Mooney’s photographs, and then stated that he did not accept Mr Ruki’s evidence that the irrigator broke down in a different location. Mr Hopkinson says the evidence at trial was consistent with the Judge’s finding that while it may have been possible to turn the irrigator around by hand, Mr Ruki would not have moved the irrigator (with the hose pipes) approximately 14 metres without the assistance of machinery that was not available to him on that day.

[41]   Mr Hopkinson also submits that it is clear from the Judge’s decision that his decision was based on a  careful  review  of  all  the  evidence,  including  that  of  Mr Mooney (which included his photographic evidence, his video evidence and the sampling evidence). This was in contrast to Mr Ruki’s account which was implausible, inconsistent and open to the Judge to reject. Ultimately, Mr Hopkinson says that the Judge clearly preferred the evidence of Mr Mooney over that of Mr Ruki, and on the basis of Mr Mooney’s evidence, together with other surrounding evidence presented at trial, it was perfectly open to the Judge to find the charges proved.

[42]   In relation to the issue of Mr Johnstone’s vicarious liability, Mr Hopkinson notes that it is not necessary for a prosecutor to charge a defendant specifically under s 340  of  the  RMA,  because  s 340  does  not  itself  provide  a  separate  ground for

18 Following a sentencing indication in March 2018, each of the trustees pleaded guilty to the discharge of effluent and were discharged without conviction. They were each ordered to pay reparations of $7,500 to the Regional Council in lieu of a fine.

prosecution, that is, in addition to s 338.19 Mr Hopkinson emphasises that the contents of ss 338 and 340 in fact overlap, given the broad scope of “permitting” a contravention of s 15. Mr Hopkinson also notes that a contravention of s 15 is strict liability, to which there is a “no fault” statutory defence pursuant to s 341(2) of the RMA. He notes the appellants expressly disavowed relying on a no fault defence under s 341(2), and accordingly it is not realistic to suggest Mr Johnstone would have nevertheless asserted a “no fault” defence pursuant to s 340(2).

[43]   Mr Hopkinson says the Judge’s reasoning at [87] to [90] of his judgment indicates that his finding of Mr Johnstone’s guilt was not based exclusively on vicarious liability under s 340. But Mr Hopkinson says that even if that were so, it was not wrong for the Judge to have done so. Mr Hopkinson accepts the prosecution case was advanced on the basis Mr Johnstone himself contravened or permitted a contravention of s 338(1)(a), but says that did not preclude the Judge from a finding of vicarious liability under s 340. Mr Hopkinson says the evidence would have been no different if the prosecutor had expressly relied on s 340. He also notes that given the primary defence at trial was that no unlawful discharge occurred at all, it would have been inconsistent for Mr Johnstone to also lead evidence that he took all reasonable steps to remedy any effects of the discharge for the purposes of s 340(2) of the RMA. For these reasons, it is said that Mr Johnstone was not prejudiced in his defence.

Approach to appeal

[44]   Given the Supreme Court’s decision in Sena v Police, the present appeal against conviction is to be approached as a rehearing in accordance with the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar.20 In short, if the appellate court comes to a different view on the evidence, the trial judge will have necessarily erred and the appeal must be allowed.21

19 Southland Regional Council v Sandstone Dairy Ltd, above n 15, at [32]–[33]. On appeal Fogarty J held that it was open to the District Court in that case to  convict the defendant in reliance on    s 338(1) or s 340(2); Sandstone Dairy Ltd v Southland Regional Council HC Invercargill CRI-2007-425-000001, 15 May 2007 at [35] and [38].

20 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

21 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].

[45]   The Supreme Court in Sena nevertheless made it clear that the matter is not approached on a de novo basis and an appellant will still need to point to some error in the trial judge’s decision. The Court also said that the appellate court must also take into account any advantages the trial court may have had – in particular, the ability to assess competing oral evidence first hand over the entirety of a trial.22 The adequacy of reasons given for the trial judge’s conclusions will also be relevant. Simple conclusory statements on important credibility contests will be unlikely to suffice and may themselves indicate a miscarriage.23

[46]   The advantages enjoyed by a trial judge in a case of this kind can be important. Here, the case against Mr Ruki and Mr Johnstone was presented over a five-day hearing, which included extensive and dense expert evidence, and by reference to a significant number of exhibits. Judge Kirkpatrick had the advantage of hearing all the viva voce evidence over that five-day period and was in a position to assess the evidence as it unfolded. I have read the entirety of the notes of evidence, the experts’ briefs of evidence and carefully studied the various exhibits produced. While of course it is open to me to differ from the Judge on key factual findings where I consider it is appropriate to do so, I proceed with the “customary caution” when intensely factual findings are challenged.

Discussion

Did the Judge err in proceeding on the basis the irrigator could not be moved?

[47]   Having studied the notes of evidence and the various documents produced by way of exhibits, it is clear there was some evidence or discussion of the ability to move the irrigator during a manual turn (at least with the pipes uncoupled), though I accept this issue was not focused on to any real degree.

[48]In Mr Ruki’s interview by Council officers on 13 December 2016, he stated:

I had turned it around, I took the couplings off, knowing that it wasn’t that, like it doesn’t look very far from there but it is actually quite wide um, I turned the irrigator around and re-plugged it all back up and left it stationary.

22     Sena v Police, above n 21, at [38]–[40].

23 At [36].

[Emphasis added]

[49]   A map and diagram produced during the interview showed the points in paddock 7 to which Mr Ruki was referring, with an arrow in a crescent or arc shape, indicating the turn of the irrigator to where Mr Ruki said he left it at the seven-metre location.

[50]   Mr Johnstone also said in evidence that when turning the irrigator to do another run:

…you would disconnect the pipe off the back of it, turn it around or pull it around in a half-moon shape so it’s on a different run so you’re not pouring effluent on the same area. Pull it up a bit which you know can be done on foot but not with the drag hose connected to it, run a new line out on a different angle, connect it all back up, go down turn it on, make sure it’s all moving.

[Emphasis added]

[51]The following exchange also took place between the Judge and Mr Johnstone:

QNow my other questions are about the irrigator I just want to confirm this, because it sounds like you did a lot of this yourself. Am I right in understanding that one worker can turn the irrigator himself?

A        Yes.

Q        But you couldn’t move it without a machine? A    No, no.

Q        Right. And you didn’t have a machine that day? A No, not available to, no.

[52]   Mr Ruki gave evidence of turning the irrigator around in the morning after breakfast, and while it was clear from his evidence that this was done by hand, he did not expressly or clearly state that it had been moved some 14 metres in doing so. He did, however, say that after completing the turn “it was close to the bank, close to the

– it was close to the fence line”. Mr Ruki was also taken in his evidence to the diagram discussed with him during his interview, which shows the arrow in the half-moon or arc shape. He confirmed that the asterisk nearer the fence line was “… where I turned it around”.

[53] I nevertheless accept that the Judge was clear in his view that the irrigator could not be moved manually between the 21-metre and seven-metre locations. This is evident from [66] of the Judge’s reserved decision (set out at [25] above).

[54]   Without at this stage taking into account the further evidence sought to be adduced on the appeal, but assuming for present purposes that the Judge was incorrect in finding that the irrigator could not be moved by hand between the two locations during a turn, I do not consider any such error led to a miscarriage of justice in any event. I say this for the following reasons.

[55]   First, Mr Ruki’s evidence of the events on 18 October 2016, as across his diary entries the following day, his interview in December 2016 and his evidence given at trial, was somewhat confusing and unclear. I also accept Mr Hopkinson’s submission that there were some inconsistencies or anomalies. For example, there were inconsistencies as to when Mr Ruki first told Mr Johnstone about the problem with the irrigator. Mr Ruki’s account was also that he had noticed the irrigator malfunctioning at some point fairly soon after breakfast on 18 October 2016. Mr Johnstone said he had spoken briefly with Mr Ruki in the early afternoon, on Mr Johnstone’s return to the farm after the trustee meeting (but before going into town to purchase a new motorbike). Had Mr Ruki discovered the irrigator malfunctioning at that early point in the day,  it is quite unusual that he did not  mention this in his discussion with    Mr Johnstone at that time.

[56]   Mr Ruki’s evidence was also unclear as to why he moved the irrigator by hand to the seven-metre location, and thereafter took the trouble to reconnect the pipes to it, when he acknowledged it was malfunctioning and could not operate that close to the fence in any event. In this context, he accepted in cross-examination that it did not make sense that, having found the irrigator broken down, he set it up to do another run from a location from which it would need to be moved.

[57]   On a careful reading of the Judge’s decision as a whole, it is clear he ultimately preferred Mr Mooney’s evidence to that of Mr Ruki. I do not consider that to have been an error on the Judge’s part. Mr Mooney is a highly experienced council enforcement officer with over 20 years’ experience. He was very clear in his evidence

that he saw a ring around the irrigator which had raised his initial concerns, as well as the wetness around the irrigator and the flow of effluent he observed down the embankment into paddock 8. In this context, and with the Judge having the significant benefit of following Mr Mooney’s evidence as it was given, including, importantly, working through the photographs and maps, the Judge was also clear in his own view that “there was a reasonably widespread flow from the top of the embankment near to where the irrigator is shown in these photographs down to the spring-fed drain”.

[58]   Mr Walker was also clear in his evidence that when bringing the cows in for the afternoon milking, he had looked across the paddocks and seen a ring around the irrigator. On Mr Ruki’s evidence, this would have been at a time when the irrigator was at the seven-metre location. Mr Walker’s evidence was accordingly consistent with Mr Mooney’s. And Mr Ruki’s own evidence was that when he first spoke to  Mr Mooney when he (Mr Mooney) arrived at the farm that afternoon, Mr Ruki had asked Mr Mooney “is there a problem,” to which Mr Mooney had replied “yes, there’s a black ring around your irrigator”. The fact Mr Mooney said this to Mr Ruki is also consistent with Mr Mooney having actually seen a ring around the irrigator at that time.

[59]   Mr Ruki’s account was that he had turned the irrigator around, recoupled the pipes and set it up at the seven-metre location shortly after breakfast, and that he had not returned to the paddock. However, this was inconsistent with Mr Walker’s evidence, who said he saw Mr Ruki in the paddock while he (that is, Mr Walker) was bringing the cows in for the afternoon milking. Mr Mooney also said that when he first spoke to Mr Ruki, Mr Ruki had told him that he had noticed the irrigator had stopped when he was coming back to get the milking shed set up for the afternoon milking, and had raced to the paddock to turn the irrigator off. Mr Ruki denied this. But it is again implicit in his evidence that both Mr Mooney and Mr Walker were mistaken on the same point.

[60]   I have also carefully reviewed the expert evidence, including that of Mr Forster and Dr Care. Mr Forster, with significant practical experience, was quite adamant in his view that Mr Mooney’s photographs showed a clear flow of effluent down the embankment in paddock 8 towards the spring-fed drain. Dr Care was not of the same

opinion, but I note that her evidence did not point to anything inconsistent with a discharge from the irrigator. In this context, the following exchange took place between Mr Hopkinson and Dr Care:

Q Mr Mooney’s evidence was that  the only areas in  his photographs that are wet is where he found effluent had discharged from the irrigator above this location. You’d accept that Mr Mooney’s photographs of these wet areas are consistent with his evidence that he found effluent discharging in this part of the farm, wouldn’t you?

A Possibly, possibly not. If the stock were in there and stock had been congregating around there that could be the wet areas on the track and close to the spring.

[Emphasis added]

[61]   I note the Judge did not seek to determine which of Mr Forster and Dr Care’s opinions was correct. Nevertheless, their evidence was at least consistent with a discharge of effluent from a travelling irrigator, though could not necessarily rule out the discharge being caused by cows in paddock 8 the previous day.

[62]   As to the reasonable possibility of cows having been in paddock 8 the previous day, I do not consider there to be any reliable evidence of this. As noted, Mr Johnstone and Mr Ruki’s evidence on this point was based on “counting back” from instructions given by Mr Johnstone in December 2016 as to what paddocks the cows were to be put in while he was on vacation. I consider it quite notable, however, that at no time during Mr Ruki’s discussions with Mr Mooney on the day in question, or later that week (in the case of Mr Johnstone), was it ever suggested the cows had been or may have been in paddock 8 the day before. Plainly if the herd of 480 cows had been in paddock 8 the day immediately preceding these events, that would have been firmly in Mr Ruki and Mr Johnstone’s minds, who would have inevitably raised that with Mr Mooney as a possible explanation for what he thought he had seen in paddock 8.

[63]   Similarly, there was there no suggestion in either Mr Ruki or Mr Johnstone’s formal interviews, just under two months later, that the cows had been in paddock 8 the day before the discharge. On the contrary, Mr Ruki said:

Oh, off the top of my head I know that there was like prior to a week, [inaudible] like when that irrigation was there, there were cows in this paddock probably five or six days out from then, yeah so they had been

grazing, yeah but because that’s the only time we put them in these, irrigation goes in, as soon as they graze it the irrigation goes in behind them ...

[64]   In his interview, it was put to Mr Johnstone that Mr Ruki had said the cows had been in paddock 8 “six to 10 days prior”, and he was asked “would that be about right?”. Mr Johnstone replied “yip”. Again, there was no suggestion he could not remember or that this might be incorrect.

[65]   Finally, there was considerable expert evidence about the samples Mr Mooney had taken, and whether they supported the prosecution case or gave rise to a reasonable possibility of the contaminants having come from other sources (such as direct defecation by cows into the drain, sediment being disturbed when the samples were taken, or more diffuse run-off from the farm as a result of heavy rainfall). Ultimately, the expert evidence on the samples did not advance matters. There were only four samples and it was clear that a greater number of samples was needed to give a more robust picture. Nevertheless, both Dr Donald (for the prosecution) and Dr Moriarty (for the defendants) were of the same view that the testing results were at least consistent with a discharge from the travelling irrigator, though equally other possibilities could not be ruled out.

[66]   Drawing together all the strands of evidence discussed above, and even accepting the Judge may have wrongly concluded the irrigator could not be moved by hand during a turn, I do not consider the Judge was in error in reaching the conclusion he did.

[67]Mr Ruki’s appeal against conviction is accordingly dismissed.24

Did a miscarriage of justice arise from being found to be Mr Johnstone vicariously liable?

[68]   It is not in dispute that the prosecution case against Mr Johnstone was on the basis he had personally committed an offence pursuant to s 338 of the Act by “permitting” a qualifying discharge. The prosecutor’s opening submissions referred

24  Given I have proceeded on the assumption that the Judge erred in concluding the irrigator could  not be moved 14 metres by hand, it has not been necessary to determine the appellants’ application to adduce further evidence on the appeal.

only to s 338, and stated “the defendants discharged contaminant because they both had a causative role in the irrigator being activated” (emphasis added). The opening went on to state that:

They both failed to take appropriate preventive steps to avoid the discharged. Mr Johnstone failed to give adequate instructions to staff to monitor the irrigator and Mr Ruki failed to adequately monitor the irrigator.

[Emphasis added]

[69]   No reference was made to Mr Johnstone also being vicariously liable pursuant to s 340.

[70]   The prosecution’s closing submissions were again framed on the basis “that each of the defendants played a causative role in the discharge”. Like the opening, the case against Mr Johnstone was that he had failed to give Mr Ruki appropriate instructions that would ensure the irrigator would be safely operated in his absence. Again, no reference was made to the possibility of Mr Johnstone being vicariously liable.

[71]   As noted earlier, the Council says the Judge did not exclusively base his finding of Mr Johnstone’s guilt on vicarious liability.

[72] I cannot accept that submission. Having regard to those aspects of the Judge’s decision set out at [31] above, it is tolerably clear that he considered Mr Johnstone’s guilt on the basis of s 340 alone. The Judge rightly noted that the charge Mr Johnstone faced, as framed by the prosecutor, included “permitting” a discharge. But he went on to state that “in the absence of raising any of the defences under s 340(2) RMA, he must therefore be subject to s 340(1)”. And importantly, the Judge accepted that Mr Johnstone gave appropriate instructions to Mr Ruki. The Judge thereby rejected the basis upon which the prosecution had advanced its case against Mr Johnstone, namely that his instructions were inappropriate. But despite accepting Mr Johnstone’s instructions were appropriate, the Judge went on to state that Mr Johnstone was “nonetheless” liable in his “principal capacity” as farm manager.

[73]   Lest there by any residual doubt as to the basis upon which the Judge found Mr Johnstone guilty, in the Judge’s sentencing notes, the Judge stated:25

Mr Johnstone’s culpability follows from Mr Ruki’s, because as his manager and having primary day-to-day responsibility for the effluent disposal system, the RMA makes him liable for Mr Ruki’s offending.

[Emphasis added]

[74]   The Judge footnoted this extract of his sentencing notes with a reference to    s 340 of the RMA.

[75]   On the basis, therefore, that the Judge found Mr Johnstone guilty because he was vicariously liable for Mr Ruki’s actions, has there been a miscarriage of justice?

[76]   It is trite that a defendant must have fair notice of the allegations to be made against him or her.26 As noted, Mr Conder accepts that such notice need not always be given by the charging document itself, and may be given by other means. The courts have most often grappled with the question of fair notice when it is suggested there has been a significant change in the prosecution case during trial. It will be a question of fact and degree in any given case as to whether a miscarriage has ensued.27

[77]   In this case, the first time Mr Johnstone knew that his liability was being considered and indeed determined on the basis of vicarious liability was on receipt of the Judge’s reserved decision.

[78]   There would be no miscarriage of justice if, on the evidence before the Judge, liability pursuant to s 340 was plainly available, and no other evidence or legal submissions could have been called or made on behalf of Mr Johnstone which might have altered the position.

[79]   I accept Mr Conder’s submission that this case is not an obvious example of vicarious liability on Mr Johnstone’s part. Such liability will more ordinarily arise in the case of a company being held to be vicariously liable for the actions of its

25     Bay of Plenty Regional Council v Ruki [2019] NZDC 13701 at [36].

26     See, for example, R v Shaw, above n 16, at [43].

27     See, for example, the discussion in Fa’avae v R, above n 16, at [45]–[57].

employees and/or agents. That vicarious liability was not an obvious choice is also reflected in the fact that the prosecution case against Mr Johnstone was not advanced on that basis. Presumably if the Council had considered vicarious liability on the part of Mr Johnstone a real possibility, it would have advanced such a case in the alternative.

[80]   While the matter has not been argued fully before me, the terms “agent” and “employee” as used in s 340 are likely to be given their normal legal meanings.28 And in Canterbury Regional Council v Newman, the Court of Appeal observed:29

As to legislative purpose, s 340, read with the offence section, s 338, is intended to impose absolute liability offences on a principal for the acts of an agent. (Those acts must, of course, be acts within authority in the sense which has come to be recognised in the principal and agent and employment field.)

[Emphasis added]

[81]   Plainly Mr Ruki was not Mr Johnstone’s employee. And while Mr Johnstone acknowledged that in his role as farm manager, he had overall responsibility for the irrigator, it does not necessarily follow that Mr Ruki was Mr Johnstone’s “agent” for the purposes of s 340. Whether or not an agency relationship in the normal legal sense existed between Mr Johnstone and Mr Ruki as co-employees was a matter which warranted express consideration, from both a factual and legal perspective. But because the case against Mr Johnstone was not advanced on the basis of vicarious liability, Mr Johnstone was denied the opportunity to adduce any factual evidence in this context, nor did his legal counsel have the opportunity to make legal submissions on the issue.

[82]   Mr Johnstone says he was also not provided with an opportunity to consider adducing any evidence relevant to a potential defence under s 340(2) of the RMA. But Mr Johnstone had disavowed any defence on the basis of s 341(2), and the defences under the two sections are very similar (though I accept not framed in precisely the same terms). I accordingly do not attach any significant weight to this point.

28     Salmon Environmental Law (online ed, Thomson Reuters) at [RM340.01].

29     Canterbury Regional Council v Newman [2002] 1 NZLR 289 (CA) at [82].

[83] But on the basis of those matters set out at [81] above, I consider there was a miscarriage in this case, in that Mr Johnstone did not have fair notice of his guilt being determined on the basis of vicarious liability. Whether Mr Ruki was Mr Johnstone’s agent for the purposes of s 340 would have needed to be the subject of further evidence and legal argument. And at least on the basis of the materials presently before this Court, I accept there is a real risk of a different outcome if vicarious liability had been pursued from the outset. As noted, the Judge rejected the prosecution’s case that Mr Johnstone was personally liable under s 338 because his instructions to Mr Ruki were inappropriate. There has been no cross-appeal against that finding.

[84]   In these circumstances, Mr Johnstone’s appeal is allowed and his conviction is quashed. The remaining question is the appropriate next step.

[85]   It is inappropriate for me to enter an acquittal. The possibility of Mr Johnstone being liable by way of vicarious liability has not been argued before me. In ordinary circumstances, the appropriate course would be to order a retrial so that question could be fully ventilated before the District Court.

[86]   Mr Conder urges me to exercise my discretion not to order a retrial. As noted earlier, he says the events in question took place some four years ago, and that as evidenced by the sentences imposed, the offending was not particularly serious. The offending has already resulted in a substantial payment of reparations by the owners of the land, which will also have been (or will be) augmented by Mr Ruki’s fine.   Mr Conder says there is no public interest in sending the matter to a second substantive trial.

[87]   A court has a discretion as to whether to direct a new trial. The approach is flexible and there are no hard and fast rules regarding the exercise of that discretion.30

[88]   I do not consider it appropriate to direct a retrial. The events in question occurred four years ago. Five full sitting days of scarce court resources have already been utilised in the District Court, together with a day’s hearing in the High Court. Plainly by the sentence imposed on Mr Johnstone in particular, the Judge considered

30     R v Samuels [1985] 1 NZLR 350 (CA) at 356.

his personal culpability to be low. Significant reparations have already been made by the owners of the land, and Mr Ruki has also been ordered to pay a fine. And importantly in the context of the wider public interest, following the events in question, appropriate mitigating steps have been taken in relation to the irrigation system at the farm, including fitting GPS monitoring to the travelling irrigator which will prevent a discharge of the type in this case from occurring again.

[89]I accordingly decline to order a retrial.

Result

[90]Mr Ruki’s appeal against conviction is dismissed.

[91]   Mr Johnstone’s appeal against conviction is allowed and his conviction is quashed. I do not order a retrial.

……………………………..

Fitzgerald J