Rutherford v Canterbury Regional Council
[2021] NZHC 1506
•24 June 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000143
[2021] NZHC 1506
BETWEEN JAN SCOTT RUTHERFORD
Appellant
AND
CANTERBURY REGIONAL COUNCIL
Respondent
Hearing: 11 March 2021 Appearances:
J M van der Wal for Appellant
T J McGuigan and L A O’Dwyer for Respondent
Judgment:
24 June 2021
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 24 June 2021 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
[1] On 14 May 2018 Mr Rutherford pleaded guilty to six charges brought by the Canterbury Regional Council (the Council) under the Resource Management Act 1991 (RMA). He was sentenced on 15 August 2018 to fines totalling $34,000 along with Court costs. An associated enforcement order was also made.
[2]Mr Rutherford now seeks leave to appeal those convictions out of time.
[3] Given the connection between the merits of the appeal and the application for leave to appeal, the two issues are being heard together.
RUTHERFORD v CANTERBURY REGIONAL COUNCIL [2021] NZHC 1506 [24 June 2021]
Background
[4] Mr Rutherford is the director and shareholder of related companies that own and farm land on the true left bank of the Waiau River in the Hurunui District, North Canterbury. The charges relate to work done in 2017 on an approximately 90 hectare area of land (the subject area) situated in close proximity to the river.
[5] In 2014, well before the relevant works were done, Mr Rutherford and his advisers had engaged with the Council regarding the extent of the riverbed in and around the subject area. Pragmatic riverbed lines were agreed at that time for the purpose of advancing a resource consent application.
[6] In 2017 Mr Rutherford undertook works on the subject land. The works involved scraping and levelling the subject area, removing vegetation on it, and then seeding it and fertilizing it with superphosphate. These actions resulted in six charges alleging breaches of ss 13 and 338 of the RMA because they constituted works within the bed of the Waiau River which were not authorised by a resource consent or otherwise (the s 13 charges).
[7] As a result of the works, sediment was able to enter the water of an irrigation intake channel that discharged into an irrigation intake pond. The Council charged Mr Rutherford with discharging sediment into water in breach of ss 15(1)(a) and 338 of the RMA (the s 15 charge).
[8] On 24 October 2017, Mr Rutherford entered not guilty pleas to all the s 13 charges and elected a judge-alone trial. A guilty plea was intimated to the s 15 charge.
[9] The key issue in dispute in relation to the s 13 charges was whether the subject area fell within the “bed” of the Waiau River as that term is defined by s 2 of the RMA. The Council maintained that the true left bank of the Waiau River was defined by an old river terrace, whereas Mr Rutherford maintained that the true left bank of the Waiau River was a low, but well defined gravel bank. This difference was critical because if Mr Rutherford was correct, none of the subject area was within the bed of the river, whereas if the Council was correct, approximately 70 hectares of the subject area fell within the bank of the Waiau River.
[10] At the same time as Mr Rutherford was being prosecuted, the Council was prosecuting Dewhirst Land Company Ltd and its director, for unlawful works carried out in the bed of the Selwyn River, again in breach of s 13 of the RMA (the Dewhirst proceedings). Counsel for Mr Rutherford also represented Mr Dewhirst and his company.
[11] A disputed facts hearing in the Dewhirst proceedings was held before Environment Court Judge Hassan on 1 December 2017 and 29 January 2018 to resolve two key issues for sentencing purposes. One of these issues was the extent to which unlawful works carried out along the true right bank of the Selwyn River fell within the “bed” of that river as defined by s 2 of the RMA. On 20 March 2018, the Court advised counsel that Judge Hassan’s reserved decision on the disputed facts hearing was imminent.
[12] Following that indication, Mr Rutherford sought an adjournment of his judge-alone trial scheduled for 22 and 23 March 2018. The Council did not oppose the adjournment and it was granted. A new judge-alone trial date was allocated for 14 - 18 May 2018.
[13] On 22 March 2018 Judge Hassan released his first disputed facts decision on the issue of what constituted “flood control vegetation”.1 The decision contained indications that the Court preferred the Council’s approach to the interpretation of the definition of “bed” in s 2 of the RMA. Further, submissions were sought on the meaning of the phrase “without overtopping its banks” and a further hearing was scheduled for 18 April 2018 on the second disputed fact.2
[14] On 29 March 2018, Mr Rutherford sought a further adjournment of his judge-alone trial. The primary ground for seeking adjournment was to obtain a final determination from the Court on the correct interpretation of the definition of “bed” in s 2 of the RMA in the Dewhirst proceedings. The Council opposed the adjournment and, on 12 April 2018, Judge Hassan declined the application.
1 Canterbury Regional Council v Dewhirst [2018] NZDC 5412.
2 At [174].
[15] On 20 April 2018, Judge Hassan released his second disputed facts decision in the Dewhirst proceedings which confirmed the Council’s more expansive approach to the interpretation of the definition of “bed” in s 2 of the RMA was correct.3 The Judge decided that the RMA definition of “bed”, being “the space of land which the waters of the river cover at its fullest flow without overtopping its banks” should be interpreted by determining what is “fullest flow” and then finding a “suitable bank”.4 This approach meant more land was captured as the “bed” of the river than Mr Dewhirst or Mr Rutherford considered was the case.
[16] Following receipt of 20 April 2015 decision in the Dewhirst proceedings, Mr Rutherford obtained legal advice regarding the prospects of a successful defence at his judge-alone trial. For sentencing purposes, Mr Rutherford and the Council agreed on a “pragmatic” boundary of the bed of the Waiau River which included the subject area, but was riverward of the old terrace.
[17]On 9 May 2018, a joint memorandum was filed in the District Court whereby:
(a)Mr Rutherford intimated that he wished to change his not guilty pleas to guilty pleas in respect of five of the six charges;
(b)the Council sought leave to withdraw one of the s 13 charges.
[18] On 14 May 2018 Mr Rutherford entered guilty pleas to the five s 13 charges and to the s 15 charge, and was convicted.
[19] On 21 May 2018, Mr Dewhirst and his company filed an appeal in the High Court against the disputed facts decisions of Judge Hassan challenging the interpretation of “bed” under s 2 of the RMA.
[20] Following hearings in the High Court on 16 August 2018 and 21 November 2018, Gendall J allowed Mr Dewhirst’s appeal and adopted his interpretation of “bed” under s 2 of the RMA which, for convenience, is referred to as
3 Canterbury Regional Council, v Dewhirst [2018] NZDC 7650.
4 At [62] citing the Council’s submissions with approval.
the “bank to bank test”.5 The High Court held that the words “usual or non-flood” should be implied and read into the RMA definition of “bed” before the word “fullest flow”.6 “Fullest flow” for the purpose of the definition was therefore to be regarded as:7
… the river’s fullest usual flow over a reasonable period of years of river activity cycles, and not including flood waters that would flow onto the margins and flood plain adjacent to the river.
[21] The Council appealed the High Court decision. However, in a judgment dated 8 October 2019, the Court of Appeal dismissed the appeal and confirmed that the correct legal test for determining the bed of a river was the “bank to bank” test.8
[22] In light of the Court of Appeal’s decision, the Council acknowledges that the subject area where Mr Rutherford’s offending occurred, falls outside the bed of the Waiau River. The Council does not oppose the application for leave to appeal out of time. However, the Council opposes the substantive appeal on the following grounds:
(a)the mere fact there has been a change of law since convictions were entered does not, of itself, warrant those convictions being set aside;
(b)Mr Rutherford’s conduct at the time of the offending by undertaking works on an area he knew was within the pragmatic riverbed lines agreed with the Council is an important factor to take into account and weighs in favour of dismissing the appeal;
(c)Mr Rutherford entered guilty pleas on an informed basis and with the knowledge that the defendants in the Dewhirst proceeding may bring an appeal;
(d)resource consent decisions associated with Mr Rutherford were made by the Council on the basis of the previous interpretation of the RMA
5 Dewhirst Land Company Ltd v Canterbury Regional Council [2018] NZHC 3338, [2019] NZRMA 411 at [50].
6 At [40].
7 At [41] (emphasis original).
8 Canterbury Regional Council v Dewhirst Land Company Ltd [2019] NZCA 486, [2020] NZRMA 1 at [109].
definition of riverbed and on the basis that the area where the offending occurred, would remain as riverbed.
Submissions for Mr Rutherford
[23] The appeal is brought on the grounds that a “miscarriage of justice has occurred” because, as a consequence of the High Court and Court of Appeal’s decisions, the subject area was not within the “bed” of a river as defined in s 2 of the RMA.9 As a result, the appellant could not in law have been convicted of the offences charged.
[24] Mr van der Wal, for Mr Rutherford, rejects the Council’s assertion that the convictions were based on the law as it stood at the time he was charged, and that what the Courts did on appeal was to amend or change the law. Instead, Mr van der Wal says the Courts’ decisions on appeal correctly stated the law that had applied all along.
[25] In Mr van der Wal’s submission, Mr Rutherford was convicted of something that Parliament never intended to be an offence and this distinguishes it from other authorities, and in particular, those that relate to appeals following guilty pleas. None of those authorities arise from a situation where the Court has clarified that the conduct in question was not an offence, after the entry of a guilty plea.
[26] Mr van der Wal points out that the Dewhirst proceedings and the proceedings against Mr Rutherford, originated at the same time. The High Court and the Court of Appeal found the District Court was wrong when it held that the law at the time of Mr Dewhirst’s offending required the application of a different test from the “bank to bank” test. That finding should apply with equal force to Mr Rutherford’s alleged offending, and it would be absurd if Mr Rutherford was treated differently from the defendants in the Dewhirst proceeding.10
[27] If the Court accepts that the Dewhirst proceedings simply clarified the law as it stood at the time of the offending, then Mr Rutherford could not have been convicted of the s 13 offences charged. This is important because Mr Rutherford acknowledges
9 Criminal Procedure Act 2011, s 232(2)(b).
10 Walker v Fisheries Department HC Auckland M207/84, 6 August 1984.
he is trying to set aside guilty pleas. As the Court of Appeal said in Watts v R, there are limited grounds on which a finding of a miscarriage of justice can be established following a guilty plea.11 The first three, as identified in R v Le Page,12 are set out at
[20] of the Watts decision. They are where:13
(a)the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)the appellant could not in law have been convicted of the offence charged;
(c)the plea was induced by a ruling which embodied a wrong decision on a question of law.
[28] Watts noted a fourth ground was also available,14 citing R v Merrilees, being where:15
… trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
[29] Mr van der Wal considers Mr Rutherford’s case falls squarely within the second ground. He points out that the cases that hold up having legal advice as a barrier to establishing a miscarriage of justice relate to the first and fourth grounds, and not to the ground in [20(b)] of Watts.
[30] In making this submission, Mr van der Wal relies particularly on the discussion in Udy v Police, where the Court considered that if, on the admitted facts, the appellants could not in law have been convicted of the offence, the Court would have been justified in disregarding the appellants’ guilty pleas and quashing the conviction.16
[31] Mr van der Wal also points out that although not relied on directly, the ground set out at [20(c)] of Watts is relevant. While the incorrect ruling was made in the
11 Watts v R [2011] NZCA 41.
12 R v Le Page [2005] 2 NZLR 845 (CA) at [17]-[19].
13 Watts v R, above n 11, at [20].
14 At [22].
15 R v Merrilees [2009] NZCA 59 at [34].
16 Udy v Police [1964] NZLR 235 (SC) at 239.
Dewhirst proceeding, not Mr Rutherford’s proceedings, he relied on it and Mr van der Wal submits this is another basis for allowing the appeal despite the appellant’s guilty pleas.
[32] Mr Rutherford rejects the assertion that his prior conduct by accepting that the subject area fell within the bed of the river for the purpose of resource consent applications is relevant to his conviction. It arose because the Council officers held the view that the subject area fell within the bed, a view which has now been demonstrated to be incorrect.
[33] Thus, Mr Rutherford seeks the Court grants leave to appeal the s 13 convictions and quashes those convictions.
[34] Mr Rutherford accepts the s 15 charge is unaffected by the legal issue as to the extent of the bed of a river. However, Mr van der Wal points out that Mr Rutherford was sentenced for that as part of the same course of conduct as the s 13 charges. Had the s 15 charge been the only one Mr Rutherford was facing, the consequences of being convicted would have been that he would have gone from having an unblemished record, to having a conviction. Mr van der Wal says it is in the interests of justice, therefore, that the situation be “re-set” as if the error of the District Court had not been made. If there had only been the s 15 charge, an application under s 106 of the Sentencing Act 2002 could have been made. He asks therefore that the s 15 conviction be quashed as well and the matter referred back to the District Court for hearing and determining any s 106 application that may be made.
Submissions for the Council
[35] As noted above, the Council does not oppose leave to appeal being granted but opposes the substantive appeal. The Council acknowledges the tension between the principle of finality of judicial decisions, and the declaratory principle of the common law which applies the revised law both retrospectively and prospectively.17 However, contrary to Mr Rutherford’s position, the Council contends that at the time he entered guilty pleas and was convicted, the definition of “bed” as it relates to a “river”, for the
17 Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38.
purposes of s 2 of the RMA was that adopted by Judge Hassan in his second disputed facts decision in the Dewhirst proceedings.
[36] In the Council’s submission, the decision in Taylor v R is authority for the proposition that where the Courts adopt a different interpretation of a particular statutory provision from that which previously existed, that represents a change in the law and there is no presumption it can apply retrospectively.
[37] In Taylor, the defendant was 20 at the time he seriously offended and 21 when a sentence of preventive detention was imposed on him. Eight years later, the Supreme Court held that the qualifying age for preventive detention under s 75 of the Criminal Justice Act 1985 was 21 at the date of offending, not at the date of conviction. Mr Taylor then appealed the imposition of preventive detention. The appeal was allowed and a finite sentence substituted. The case noted that the essential question was whether “preserving finality of a judicial decision in a criminal case … in the face of later judicial recognition of [an] evaluative error in that decision would work a substantial injustice.”18 In that case, the Court held that it would be “objectionable and unjust that Mr Taylor be compelled for the sake of finality to serve a sentence which, had the law been correctly understood at the time, would not have been imposed.”19
[38] Applying Taylor, the Council says the ultimate question is whether preserving finality of a judicial decision by upholding the appellant’s convictions in the face of later judicial recognition of error, would work a substantial injustice. In the Council’s submission, there is no special feature particular to Mr Rutherford’s case that suggests there is a substantial injustice. Before choosing to enter guilty pleas to all charges under s 13 of the RMA, he was advised on the legal implications arising from the disputed facts decision and he opted to agree upon a “pragmatic” boundary of the Waiau riverbed for sentencing purposes, rather than proceeding to trial. In doing so, he obtained the benefit of the guilty pleas entered and the certainty of outcome following that decision.
18 At [15].
19 At [20].
[39] The Council also opposes the application to quash the conviction on the s 15 charge. It says this conviction was not dependent on the definition of the bed of the Waiau River. Furthermore, in R v Le Page, the Court of Appeal observed that it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a guilty plea.20 Here, where Mr Rutherford fully appreciated the merits of his position and made an informed decision to plead guilty, the conviction cannot be impugned.
[40] The Council points out that while Mr Rutherford contends he would have applied for a discharge without conviction, he has cited no authority for the proposition that an appellate Court should reset the situation by quashing a valid conviction so that he can again plead guilty to the charge in the District Court and be resentenced in the hope of receiving a discharge without conviction.
[41] In summary, the Council says allowing the appeal would erode the principle of finality in judicial decisions within the criminal law, and there are no special circumstances which would warrant that course of action.
Discussion
[42] Curiously in this case, the Council has not opposed the application for leave to appeal out of time but rather, says the appeal should not succeed on its merits. In the cases the Council relies on, the critical issue is whether leave to appeal out of time should be granted, it being clear that if the appeal proceeds in light of the changed law, it must inevitably succeed. The only difference in this case is whether the fact Mr Rutherford entered guilty pleas after receiving legal advice, is an impediment to the appeal succeeding.
[43] In my view, most of the Council’s submissions are better dealt with in deciding whether leave to appeal out of time should be granted, particularly as it acknowledges the prosecution could not succeed on the law as it is now understood.
20 R v Le Page, above n 11, at [16].
[44] A leading authority on this issue is the Court of Appeal’s decision in R v Knight.21 That concerned an application to appeal a conviction for benefit fraud out of time on the grounds the defendant was not in a relationship in the nature of a marriage at the time she received the benefit. In this regard, she relied on the Court of Appeal’s subsequent decision in Ruka v Department of Social Welfare which held there must be a degree of financial interdependence for such a relationship to exist, and this was not present in Ms Knight’s case.22
[45] In Knight it was held that the discretion to extend the time for appeal is not unfettered and “[t]he touchstone is the interests of justice in the particular case”.23 It is not enough that a later decision of a superior Court shows the decision from which it is sought to appeal was or might have been wrongly decided.24 In deciding whether the interests of justice in the particular case warrant granting leave, the wider interest of society in the finality of decisions must be balanced against the interests of the individual applicant in having the conviction reviewed.25 The considerations which are relevant to that overall assessment are:26
… the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for the delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[46] Applying those principles, the Court of Appeal in Knight was satisfied that there were special circumstances for extending the time to appeal in that case. These were:27
(a)the substance of the issue, namely the degree of financial dependence, was raised at trial;
(b)the department now accepted Ms Knight was entitled to the benefit which she was previously charged with obtaining fraudulently;
21 R v Knight [1998] 1 NZLR 583 (CA).
22 Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA) at 182.
23 R v Knight, above n 21, at 587.
24 At 587.
25 At 587.
26 At 589.
27 At 589.
(c)there was some explanation for the long delay in seeking leave to appeal out of time;
(d)there was no suggestion that granting the application would open the floodgates for reconsideration of a large number of cases.
Accordingly, the application for an extension of time was granted and the appeal was allowed.
[47] A similar conclusion was reached in Taylor v R, discussed at [37] above. Despite a long delay (some 20 years), the Court held that retention of finality in the circumstances of the case would be objectionable and work a substantial injustice.28 Additionally, in that case, the Court held that the non-exercise of appeal rights does not engage the principle of finality in the same way, and an application to appeal out of time is more likely to be granted than a fresh appeal.29 The Court also noted arguments for granting leave are stronger in the criminal context and where a defendant is a prisoner.30
[48] The Court in Taylor also discussed a range of decisions in the criminal context, where convictions were unsuccessfully sought to be set aside on the basis of subsequent judicial decisions. In R v Hawkins, the applicant had pleaded guilty to various mortgage fraud charges.31 He sought an extension of time in which to seek leave to appeal his conviction on the basis that a subsequent House of Lord’s decision meant he had pleaded guilty on a different understanding of the law. However, the Court of Appeal held the circumstances occasioned no substantial injustice. The applicant had pleaded guilty to an array of dishonesty offending and, in all probability, alternative counts could have been laid successfully.32 In R v Ballinger,33 and A v Governor of Arbour Hill Prison,34 leave to appeal was also declined because the applicants were not considered to have suffered a substantial injustice. In Ballinger
28 Taylor v R, above n 17 at [16].
29 At [8].
30 At [9].
31 R v Hawkins [1997] 1 Cr App R 234 (CA).
32 Taylor v R, above n 17 at [11] citing R v Hawkins, above n 31, at 239-241.
33 R v Ballinger [2005] EWCA Crim 1060, [2005] 2 Cr App R 433.
34 A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88.
the defendant was found guilty of indecent assault and in A v Governor of Arbour Hill Prison, the defendant pleaded guilty to sexual intercourse with a girl who was below the age of consent. In neither case did the grounds of the appeal impugn the criminality of the behaviour the defendant was convicted of. Instead the grounds of appeal related to issues of jurisdiction.
[49] In light of those cases, I turn to consider Mr Rutherford’s application and whether preserving finality of his conviction in the face of the subsequent determination of the High Court and Court of Appeal would work a substantial injustice.
[50] In my view, declining the application for leave to appeal, would be objectionable and work a substantial injustice. First, as was the case in Knight, the prosecuting authority accepts the conviction could not have succeeded on the law as it now currently stands. Second, as the Council accepts, the delay is reasonably explained. It was not until the question of interpretation of the definition of “bed” of a river in the RMA was finally determined by the Court of Appeal, that Mr Rutherford could make his application for leave to appeal.
[51] Thirdly, Mr Rutherford raised this issue from the outset, and it was the reason he did not plead guilty to the s 13 charges. It is also why he sought adjournment of his trial. However, his second application for adjournment on 29 March 2018 was declined.
[52] While the Council considers Mr Rutherford’s guilty pleas are an impediment to his appeal, and suggests he could have gone to trial and argued this matter, that ignores the practical reality Mr Rutherford was facing at the time. On the law, as it stood following the 20 April 2018 decision in the Dewhirst proceeding, Mr Rutherford had no defence. He was also unsuccessful in his application to adjourn the proceedings until a final decision issued on the correct interpretation of the definition of “bed” in s 2 of the RMA in the Dewhirst proceeding.
[53] In addition, there is no suggestion that allowing Mr Rutherford leave to appeal, and granting his appeal, would open the floodgates. The disputed issue only arises in
the context of braided rivers, where the mobile nature of the river might leave a number of geographical features which could be considered banks. In any event, one of the distinctive features of this case was that Mr Rutherford contested the interpretation of “bed” at the outset, and only pleaded guilty in the face of the 20 April 2018 ruling in the Dewhirst proceedings, and the decision to decline his further application for an adjournment. That is unlikely to have been the case in other proceedings.
[54] In my view, this case is analogous to the case in Knight,35 where there are special circumstances which justify departing from the principle of finality. Accordingly, the application for an extension of time within which to appeal against the s 13 convictions is granted. The appeal on those convictions is allowed. The convictions are quashed and an acquittal is entered on each count.
[55] That leaves the conviction on the s 15 charge. As Mr van der Wal acknowledges, it is not affected by the subsequent decisions of the superior Courts on the interpretation of the term “bed” in s 2 of the RMA. The sole ground for seeking to appeal this conviction out of time is that the sentencing exercise would be different if it was the only conviction Mr Rutherford was facing and he may be in a position to seek a discharge without conviction.
[56] There are a number of impediments to Mr Rutherford’s application on this charge. First, he entered the conviction following a guilty plea. All the considerations identified in R v Le Page and subsequent decisions arise.36 That said, I accept that the approach to sentencing on the charge will differ where it is one charge in six, rather than a single charge. However, that can work both ways. The sentence on a single charge may be higher than where it is one of several charges, because issues of totality may be taken into account in the latter case.
[57] More importantly though, Mr Rutherford has not given any reason why a s 106 application could have been entertained if he had just been facing this one charge. The only consequence he refers to is the blemish of having a conviction. That is a
35 R v Knight, above n 21.
36 R v Le Page, above n 12.
consequence which inevitably flows from conviction, and there is nothing to suggest it is out of all proportion to the offending involved.
[58] Accordingly, the application for leave to appeal the conviction on the s 15 charge is dismissed.
Solicitors:
Wynn Williams, Christchurch
Copy To:
J M van der Wal, Barrister, Christchurch
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