South Taranaki Fishing Charters Limited v District Court at Whanganui
[2025] NZHC 1701
•25 June 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2025-483-9
CIV-2025-483-10 [2025] NZHC 1701
IN THE MATTER of an application for judicial review and appeal under section 296 of the Criminal Procedure Act 2011 BETWEEN
SOUTH TARANAKI FISHING CHARTERS LIMITED
First Appellant/Applicant
PETER CRAIG ROBINS
Second Appellant/Applicant
AND
THE DISTRICT COURT AT WHANGANUI
First Respondent
MARITIME NEW ZEALAND
Second Respondent
Hearing: 27 May 2025 Counsel:
F Pilditch KC and S Fraser for appellants/applicants
No appearance for first respondent (abiding the Court’s decision) R W Belcher, B M Finn and S E Solarte for second respondent
Judgment:
25 June 2025
Reissued:
27 June 2025
JUDGMENT OF ISAC J
[Application for judicial review and related criminal appeal]
Introduction and issues
[1] In early January 2022 two women booked a fishing trip conducted by the applicants, Mr Robins and his company, South Taranaki Fishing Charters Ltd (STFC).
SOUTH TARANAKI FISHING CHARTERS LTD v THE DISTRICT COURT AT WHANGANUI [2025] NZHC 1701 [25 June 2025]
Mr Robins’ vessel encountered rough water crossing the Pātea bar and both women were injured. As a consequence, Maritime New Zealand (MNZ) charged the applicants with offences under the Health and Safety at Work Act 2015 (HSWA).1
[2] The applicants challenged the prosecution in the District Court arguing the charges failed to provide particulars sufficient to meet the requirements of s 17(4) of the Criminal Procedure Act 2011 (CPA). Both applicants sought dismissal of the charges under s 147 of the CPA. In the alternative STFC applied under s 133 of the CPA for orders amending the particulars contained in the charge to reflect the summary of facts. In a pre-trial ruling Judge Glubb declined both applications, but granted a minor amendment to the charge against Mr Robins.2
[3] In this proceeding the applicants now challenge the Judge’s ruling by way of judicial review and appeal. The grounds of review and appeal substantially overlap. For this reason, I will deal first with the application for judicial review. The only aspects of the appeal that require separate consideration is the challenge to the District Court’s decision to decline STFC’s application under s 133 of the CPA to include further particulars in the charge, and Mr Robins’ challenge to the Judge’s amendment.
[4] At the conclusion of the hearing on 27 May 2025 I was advised the trial of the charges will begin in the District Court on 18 August 2025 and that an answer is required with some urgency. I have therefore dealt with the issues under some time constraints. In doing so I have sought to address the substance of the argument as it emerged at the hearing.
[5] Having done so I have reached the clear view the application and appeal should be dismissed. My reasons follow.
1 STFC faces one charge of, as a PCBU, failing in its duty to ensure the health and safety of other persons, pursuant to ss 36(2), 48(1) and 48(2)(c) of the Health and Safety at Work Act 2015. Maximum penalty of $1.5 million fine. Mr Robins faces one charge of failing in his duty as an officer of a PCBU to exercise due diligence to ensure that STFC complied with its duties, pursuant to ss 44, 48(1) and 48(2)(b) of the Health and Safety at Work Act. Maximum penalty of $300,000 fine.
2 Maritime New Zealand v South Taranaki Finishing Charters Limited and Peter Robins [2024] NZDC 31563 [District Court ruling].
Judicial review of decisions in criminal proceedings
[6] Before turning to address the substance of the application for judicial review it is appropriate to address what the parties referred to as a “threshold question” in the present case.
[7] There is an established line of authority confirming that judicial review of s 147 decisions of the District Court will only be granted in exceptional circumstances.3 One of those authorities is the decision of Simon France J in DGN v Auckland District Court where he observed:4
[29] … Compelling reasons to step outside the legislative scheme [provided by the CPA] should be required, and a strike out to assess whether the test could be met would be appropriate. This firm stance is supported by the reality that the scheme reflected in the [CPA] affords all the opportunity a defendant needs to make appropriate challenges.
…
[31] The [CPA] also prescribes appeal rights. This Part of the [CPA] reflects a careful consideration of what appeal rights should exist pre-trial and post verdict. Second appeal rights are carefully prescribed. Judicial review should not be seen as a way to circumvent that scheme. Sections 215 and 217 identify the provisions concerning which a pre-trial appeal may be brought. Section 147 is not included but the matters which underlay the s 147 application can of course be revisited as part of a conviction appeal. Further, s 296 provides for question of law appeals and may be available pre-trial.
[32] … The use of judicial review as an alternative route carries significant potential to undermine this scheme, and is one of the reasons why, in my view, a compelling reason should now be required before judicial review is allowed.
[8] In a subsequent judgment I queried whether it was appropriate to view an application for judicial review of a prosecution decision as an abuse of process.5
3 See Auckland District Court v Attorney General [1993] 2 NZLR 129 (CA) at 136; C v Wellington District Court [1996] 2 NZLR 395 (CA) at 400; DGN v Auckland District Court [2016] NZHC 3338, [2018] NZAR 137 at [32] and [40]; Angus v District Court [2017] NZHC 2879, [2018] NZAR 1804 at [30] and[31]; Buttle v District Court at Auckland [2023] NZHC 2279 at [8]; Deliu v New Zealand District Court [2024] NZHC 1693; Gifford v District Court of New Zealand [2022] DCR 25, [2022] NZAR 50, [2022] NZHC 851; Bennet v District Court of New Zealand [2020] NZHC 1730; DGN v Auckland District Court [2017] NZCA 135, [2018] NZAR 137 at [11]; Deliu v Auckland District Court [2024] NZCA 39 at [43];Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [40]; Rowe v District Court at Levin [2022] NZHC 3134 at [13];Gifford v District Court of New Zealand [2021] NZHC 1258.
4 DGN v Auckland District Court [2016] NZHC 3338; [2018] NZAR 137, approved in DGN v Auckland District Court [2017] NZCA 135, [2018] NZAR 137 at [11].
5 Gifford v District Court of New Zealand, above n 3.
However, this proceeding has caused me to question the wisdom of my previous judgment. While it may be necessary for a Court to engage with the merits of an application for judicial review to determine whether it is an exceptional case, there is no reason why that assessment cannot be carried out as part of a striking out application. The better approach is to consider strike out under r 15.1(a), on the basis the claim fails to disclose a reasonably arguable cause of action.
[9] More recently Anderson J has considered the issue of a preliminary threshold in Buttle v District Court at Auckland. The Judge noted the underlying reasons for the restraint. Relief by way of judicial review will not be granted where an alternative remedy exists.6 In criminal proceedings, significant emphasis is placed on the carefully calibrated scheme for pre-trial appeal rights, appeals (by leave) on questions of law and matters that should be dealt with by way of an appeal against conviction. In the present case there is no dispute that the matters this Court is asked to determine are the subject of appeal rights if the applicants are found guilty at trial. The full range of remedies are at that stage available as Anderson J found, including the quashing of any conviction, a stay or an order for a retrial.7
[10] In the present case the applicants question whether the threshold is compliant with s 27(2) of the New Zealand Bill of Rights Act 1990, which guarantees the right to apply for judicial review “in accordance with law”. They submit that it would be an “injustice” if they were required to wait until after the trial before the errors of law they claim affect the District Court ruling are corrected. I agree with MNZ’s submission that an “injustice” argument of this kind has been rejected by the Court of Appeal in C v Wellington District Court. There, when considering an application for judicial review of a decision to commit a defendant to trial, the Court held that the need to proceed to trial before an appeal could be heard is not a justification for instituting the judicial review procedure:8
We do not see the resulting need to proceed to trial in order to provide a platform for an appeal to this Court by either Crown or defence on a question of law as any justification for instituting the judicial review procedure. The
6 Buttle v District Court at Auckland above n 3, at [8].
7 At [87].
8 C v Wellington District Court above n 3, at 398. Importantly, at 399, the Court went on to confirm that its observation made in respect of s 345(5) applies equally to s 347 (the predecessor to s 147 of the CPA) (at 399).
Legislature has seen fit to provide a limited appeal procedure through s 379A for certain specified pre-trial matters. Questions of law identifiable before the commencement of trial outside those arise frequently, and many will need to await the outcome of the trial before being capable of referral to this Court. That does not disclose any procedural deficiency requiring ready recourse to a source of jurisdiction outside that specifically designed to meet the process of trial on indictable offences.
[11] And while every person has the right in s 27(2) to apply for judicial review, that right must be exercised “in accordance with law”. Where Parliament has provided a right of appeal, the lack of challenge by way of judicial review is unlikely to engage the s 27 right.
[12] Adequate, effective and more appropriate procedural alternatives may well oust judicial review.9 The restraint this Court exercises when sitting on review of criminal cases reflects the long-standing principle that judicial review is not appropriate where an alternative and adequate remedy exists.10 The salient point is that only in exceptional cases, where appeal rights are insufficient, there is still a role for the High Court on review. And at a wider policy level, criminal proceedings should not be generally subject to a collateral attack. Entertaining challenges outside of trial and appeal processes is likely to seriously disrupt the criminal justice system.11
[13] I have dealt with the applicant’s case on its merits so it is unnecessary for me to say more about the threshold other than to observe that the applicants have fallen well short of establishing a compelling reason why this Court exercising its supervisory jurisdiction should intervene in the present case. I consider this is the very kind of case that ought not be permitted to disrupt criminal proceedings by way of interlocutory challenge. I would have struck out the proceeding accordingly.
Background
[14] On 22 December 2022, MNZ filed two charges against the applicants in the District Court at Hawera. This was one of the last working days of the year and shortly before the end of the statutory limitation period for filing charges under s 146(1) of
9 Matthew Smith New Zealand Judicial Review Handbook (2nd ed, Thomson-Reuters, Wellington, 2016) at 481.
10 Rowe v District Court at Levin above n 3, at [13].
11 At [15].
the HSWA.12As the particulars contained in the charging document are central to the case I set them out in full below.
[15]The charge laid against STFC is in the following terms:
Date of offence: On or about 3 January 2022
Offence location: Taranaki
Offence description: Being a PCBU having a duty to ensure, so far as is
reasonably practicable, the health and safety of other persons was not put at risk from work it carried out as part of its business, did fail comply with that duty, and that failure exposed other persons, namely passengers Selah Weingott and Patricia Deverall onboard the vessel South Taranaki Fishing Charters on the Patea Bar, to a risk of serious injury or death.
Particulars: It was reasonably practicable for South Taranaki
Fishing Charters Limited to have ensured:
a.Prior to departure, it provided adequate information to potential passengers regarding bar crossing conditions and associated risks with bar crossings, in particular the unpredictability of wave conditions even in favourable weather conditions, and the potential physical impacts of bar crossings; and/or
b.Prior to departure, it conducted an adequate passenger assessment to determine passenger eligibility to attend the fishing charter and Patea bar crossing trip and/or
c.An adequately tailored safety briefing to aid passengers safety when crossing the bar was delivered prior to departure.
Legislative reference: Health and Safety at Work Act 2015, Sections 36(2),
48(1) and 48(2)(c).
Maximum penalty: Fine not exceeding $1.5 million.
Offence category: 1 Representative charge: No Alternative Charge: No
[16] Important to the outcome of this case, the charge identifies three particulars against the company:
12 The statutory limit is within 12 months after the date on which the incident first became known, or ought reasonably to have become known, to the regulator. See HWSA, s 146(1)(a).
(a)a failure to provide “adequate information” prior to departure regarding the risks associated with crossing the Pātea bar;
(b)a failure to conduct “an adequate” passenger assessment prior to departure, to determine physical suitability of those proposing to go on the trip to cross Pātea bar; and
(c)a failure to provide an “adequately tailored” safety briefing for passengers prior to departure.
[17] The use of the word “adequate” in each of the particulars was subject to particular criticism by Mr Pilditch KC for the applicants for reasons I will come to.
[18]The charge against Mr Robins personally was in the following terms:
Date of offence: On or about 3 January 2022 Offence location: Taranaki
Offence description: Being an officer of a PCBU, namely South Taranaki
Fishing Charters Limited, and having a duty to exercise due diligence to ensure that South Taranaki Fishing Charters Limited complies with its duty or obligation under s 36(2) of the Health and Safety at Work Act 2015, did fail to comply with that duty, and that failure exposed passengers, namely Selah Weingott and Patricia Deverall onboard the vessel South Taranaki Fishing Charters on the Patea Bar, to a risk of serious injury or death.
Particulars: Peter Craig Robins failed to exercise due diligence to:
a.Ensure that South Taranaki Fishing Charters Limited, prior to departure, provided adequate information to potential passengers regarding bar crossing conditions and associated risks with bar crossings, in particular the unpredictability of wave conditions even in favourable weather conditions, and the potential physical impacts of bar crossings; and/or
b.Ensure that South Taranaki Fishing Charters Limited, prior to departure, conducted an adequate passenger assessment to determine passenger eligibility to attend the fishing charter and Patea bar crossing trip; and/or
c.Ensure that South Taranaki Fishing Charters Limited, provided an adequately tailored safety briefing to aid passenger safety when crossing the bar prior to departure.
Legislative reference: Health and Safety at Work Act 2015, Sections 44,
48(1), 48(2)(b).
Maximum penalty: Fine not exceeding $300,000.
Offence category: 1 Representative charge: No Alternative Charge: No
[19] Mr Robins’ counsel criticised the failure of this charge and its particulars to identify the precise nature of his duty of due diligence. The charge fails to make it clear that his duty as an officer of the PCBU, under s 44 of the Act is limited to taking “reasonable steps” to ensure the company, as a PCBU, met its obligations under s 36(2) of the Act. The particulars provided are also identical to those of the company, suggesting a form of vicarious liability when the officer duty in s 44 is not the same as the duty of a PCBU under s 36.
[20] Outside of the 12 month limitation period, on 17 February 2023, MNZ provided the applicants with a summary of facts. The document runs to 15 pages and contains significantly more details about each of the three forms of omission set out in the particulars in the charges against STFC and Mr Robins.
[21] A second amended summary of facts was then provided on 22 May 2023, after it appears MNZ had received a written report from an expert witness, Mr Andrew Flanagan. A “track changes” version of the second summary is in evidence identifying aspects of the first version which have been deleted, and passages which have been added. While MNZ argued the additional text was no more than amplification of points made in the first version of the summary of facts, Mr Pilditch contended the additions were material changes to the basis on which the prosecution was advanced. Nothing turns on the characterisation of the changes and I say nothing further about the matter.
[22] Over a year later, on 4 April 2024, the applicants filed a notice of application under the CPA seeking an order dismissing or staying the charges under s 147 and, alternatively, under s 133 of the Act requiring further particulars to be added to the
charge. The applications came on for argument before Judge Glubb on 4 October 2024 but were remanded for further hearing on 6 December. His subsequent ruling is dated 1 December 2024 but the parties appear to agree the ruling was not issued until 22 January 2025.
The District Court’s decision and the grounds of review and appeal
[23] After noting both defendants had applied for dismissal of the charges under s 147 of the CPA, Judge Glubb summarised the submissions of the parties in some detail.13 He noted that STFC sought to amend the particulars of the charges under s 133 if its primary application was unsuccessful, and that the basis for the application was that the existing particulars “do not fully and fairly inform the substance of the offence”.14
[24] While “more precision could be included within the particulars articulated within the charging document”, the Judge found it was readily apparent that the allegation against STFC was a failure to comply with the particularised duty, and that failure exposed persons to the risk of serious injury or death.15 The charging document itself was not defective. Nor was the “jeopardy” STFC faced in any doubt when consideration was given to the accompanying summary of facts.16 More detail as the applicants sought would effectively “move to a civil pleading scenario which is to be avoided in a criminal setting”.17 The Judge then said:18
The issue for the Court is whether based on the charge as framed, the Court could reasonably convict. I conclude that it could. I dismiss the application pursuant to s 147 in relation not STFC.
[25] In terms of the alternative application to amend the particulars of the charge the Judge was satisfied the particulars set out within the charge were “sufficient and there is no need to amend the charge further”.19
13 District Court ruling, above n 2, at [13]–[31].
14 At [18].
15 At [32].
16 At [32].
17 At [32].
18 At [33].
19 At [34].
[26] Turning to the s 147 application concerning Mr Robins, the Judge found that the present case was on all fours with Sarginson v Civil Aviation Authority.20 As the Court has said there, an officer’s fundamental obligation is to exercise due diligence to ensure a PCBU complies with its duties and obligations. The Judge cited the following passage from the case:21
Whereas a director in a large company will largely have a supervisory or oversight role that may limit their obligations of due diligence to the type of requirements as set out in subs (4), many businesses will be much smaller and officers will have a much more hands-on role with direct involvement in the PCBU’s operations and day-to-day work. In those situations the officer’s own actions or omissions will likely have direct health and safety consequences. Because they can be prosecuted in their capacity as workers does not alter their obligations as officers, nor does it detract from the significance of failures to exercise due diligence by engaging in conduct at an operational level that places workers’ health and safety at risk.
[27] This passage makes clear that an officer’s own actions can have a direct health and safety consequence, and failures to exercise due diligence can take place at an operational, rather than at a higher governance level.22 That must be the case for small businesses because it is often through its officers’ direct actions that the PCBU “operates”.23 The Judge then took a paragraph from the Sarginson decision and substituted its details with the relevant facts from the present case to demonstrate the applicability of the operational duty recognised by this Court to Mr Robins’ prosecution:24
The boat was skippered by Mr Robins. He was in charge of the vessel. He did not stop being an officer of the PCBU simply because he was performing that function, nor was he absolved from his duties as an officer to exercise due diligence to ensure STFC kept its passengers safe. Mr Robins’ conduct in failing; to provide adequate information to passengers of the risk of crossing the bar, to conduct adequate passenger assessments as to eligibility for such a crossing; and to provide an adequate tailored briefing to aid passenger safety when crossing the bar, exposed the passengers to the risk of injury or death. Mr Robins failed to exercise due diligence to ensure STFC complied with its obligations, as far as reasonably practicable, to keep the passengers safe on the charter. The risk arising from Mr Robins’ conduct were subject to his control and influence in his capacity as skipper, in the circumstances of this case, it follows also as the officer of the PCBU because the risks arose from
20 Sarginson v Civil Aviation Authority [2020] NZHC 3199, [2020] NZAR 429.
21 At [127].
22 District Court ruling, above n 2, at [36].
23 At [36].
24 At [37], referring to paragraph [132] of Sarginson v Civil Aviation Authority, above n 20.
the charter activity, namely crossing the bar with which the passengers were endangered that day.
[28]The Judge went on to conclude:
[38] I accept MNZ’s submission to the effect that this is clear authority for the proposition that where the actions of an officer caused the PCBU to breach its duty, that can amount to a due diligence failure. Logically, this too must be the case, particularly in small business situations, because it is through the operational role that the officer performs that the PCBU must ensure compliance.
[39] I am satisfied that Mr Robins had the same duty as Mr Sarginson had. It follows I reject the argument that there was no duty arising.
[29] Turning to the particulars of Mr Robins’ charge, the Judge found there was “some merit” in an amendment proposed by MNZ.25 The amendment confirmed that it was Mr Robins’ failure to take “reasonable steps” as part of his due diligence. The amendment provided a greater degree of clarity to the allegation and given there was no opposition, he inserted the words “by taking reasonable steps to” after the words, “due diligence” in Mr Robins’ charge.26
[30] Apart from this amendment, the Judge was satisfied the particulars articulated in the charge captured the essence or pith of the allegation, and provided sufficient clarity “to fully and fairly inform”.27
[31] The Judge concluded by observing that the second amended summary of facts of 22 May 2022 represented “an adjustment as opposed to a re-cast” of MNZ’s case.28 The allegation remained the same but had been reformatted in part. He also found the amendment was not an abuse of process and the refinement appeared to meet the interests of justice test.29 Finally, the totality of the expert evidence of Mr Flanagan satisfied the Court that there was a case for Mr Robins to answer. His application for a discharge was therefore dismissed.
25 This amendment was proposed during the hearing, no written application was made.
26 At [40].
27 At [41].
28 At [42].
29 At [42].
Grounds of review
[32]Against that backdrop the applicants advanced four causes of action by way of
judicial review of the District Court’s ruling.
[33] In the first cause of action STFC alleges the Judge erred in law by determining that the test to apply to its s 147 application was whether a court “could convict” STFC, as opposed to whether the charge that the applicant company faced fully and fairly informed it of the substance of the alleged offence by identifying the steps it ought to have taken to comply with a HSWA duty but failed to take. Other than stating that STFC had a duty to take certain steps “adequately”, the charging document failed to specify what specific steps the company ought to have taken to meet its duty. Accordingly, the charge did not comply with the requirements of s 17 or the Court of Appeal’s decision in Talley’s.30
[34] In the second cause of action Mr Robins alleges a further error of law. It is said that when assessing his application for a stay, the Judge erred by determining that the test to apply to his application was whether he had a duty under HSWA as opposed to whether the charges he faced fully and fairly informed him of the substance of the alleged offence by also identifying the steps he ought to have taken.31 Other than stating that he had not taken reasonable steps to ensure the company took three steps “adequately”, the charging document failed to specify the steps Mr Robins ought to have taken as an officer of a PCBU.
[35] In the third cause of action the applicants contend that as a matter of law, reliance by court or a prosecutor on a summary of facts to remedy legal defects in a charge is contrary to s 17 of the CPA. The Judge in finding there was no abuse of process, however, relied on the first and second summaries of fact.
[36] The final cause of action alleges that the Judge failed to provide adequate reasons for his decision declining Mr Robins’ application. The reasons that were
30 Talley’s Group Ltd v WorkSafe New Zealand [2018] NZCA 587 [Talley’s judgment (CA)].
31 In his application in the District Court, Mr Robins only sought the dismissal of the charge, under s 147 of the CPA. However, in the prayer for relief in the statement of claim he seeks the entry of a stay in relation to the charge.
provided were “conclusory”, and the Judge failed to record or address “in any way” the evidence available to the prosecution that purportedly established that there was a case for Mr Robins to answer.
The requirement to provide particulars in regulatory charging documents
[37] Criminal proceedings are commenced by filing a charging document in the District Court.32 A charging document must include, amongst other things, particulars of the charge that satisfy the requirements of s 17 of the Act.33 Central to this proceeding is s 17(4), which provides:
17 Content of charge
(4)A charge must contain sufficient particulars to fully and fairly inform the defendant of the substance of the offence that it is alleged that the defendant has committed.
[38] The leading authority on the requirement to provide particulars in regulatory prosecutions is the Court of Appeal’s decision in Talley’s Group Ltd v WorkSafe New Zealand.34 The decision was central to the case for both the applicants and the respondent.
[39] One of Talley’s employees had been injured in a factory. Talley’s was charged by WorkSafe with breaches of the Health and Safety in Employment Act 1992 by failing to take all practicable steps to ensure the employee’s safety at work. WorkSafe failed to provide any particulars in the charging document identifying the practicable steps it alleged Talley’s had failed to take.35
[40] The District Court held that the lack of particulars invalidated the charge and this defect could not be remedied under s 379 of the CPA, which provides:
379 Proceedings not to be questioned for want of form
No charging document, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding may be dismissed, set aside, or held invalid by any court by reason only of
32 Criminal Procedure Act 2011 (CPA), s 14(1).
33 CPA, s 16(2)(d).
34 Talley’s judgment (CA), above n 30.
35 At [1].
any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.
[41] On appeal, the High Court agreed that the charging document was defective due to its lack of particulars but held the defect could be remedied under s 379.36 The Judge also considered prosecution was not an abuse of process and a stay was inappropriate.
[42] On appeal, the Court of Appeal noted that the requirement in s 17(4) of the CPA reflected a long-standing requirement of criminal procedural law.37 This was reflected in the observation of McCarthy J in Police v Wyatt that particulars must provide the “essence or pith of the charge” but not “the details relied upon to establish the charge”:38
A requirement stated in the general terms of s 17 [of the Summary Proceedings Act] cannot be reduced to a mere list of particulars which is to be common in all charges. Obviously the degree of particularity needed to inform a person adequately of the substance of a charge must vary according to the nature of the offence. I point out that it is the substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied upon to establish the charge. It will, I think, be readily apparent that in some cases only a few particulars will be necessary to convey the substance. In others, especially where the offence is a complex one … more will be required.
[43] The “very pith and essence” of the charge consisted of the practicable steps WorkSafe alleged Talley’s ought to have taken.39 It followed that identification of the practicable steps within the charge was necessary to fairly inform the defendant of the substance of the offence, and the charge was defective.40 The Court went on to observe, importantly:41
… The level of detail required may be a matter of debate, but the point is, some detail is required. The charging document in this case is defective because it contained no detail at all.
[44] Turning then to consider whether the charging document was a nullity incapable of salvage under s 379 of the CPA, the Court distinguished a decision of the
36 Talley’s Group Ltd v WorkSafe New Zealand [2017] NZHC 1103 [Talley’s judgment (HC)].
37 Talley’s judgment (CA), above n 30, at [39].
38 Police v Wyatt [1966] NZLR 1118 (CA) at 1133.
39 Talley’s judgment (CA), above n 30, at [41].
40 At [41]. CPA s 14(4).
41 At [41]. Original emphasis.
High Court of Australia in Kirk v Industrial Court (NSW),42 and found that although the charging document was defective it was not a nullity because there were particulars of time, place and means in the charge:43
… Specifically, the charge referred to the failure to take all practical steps to ensure Ms Hēmi was not exposed to hazards from the operation of the Yale forklift at the site. Though such particular was inappropriately sparse, it was no more so than was the case in Fungavaka v R.
(Footnote omitted).
[45] The Court considered s 379 of the CPA was engaged and saved the defect identified by Talley’s.44 As the charging document was not a nullity, it could not be said that s 379 would enable WorkSafe to improperly evade the limitation period that applied.45 That was because:46
If a charge is defective but not a nullity, and was filed in time, it will be saved unless ignoring the defect would produce a miscarriage of justice.
[46] The Court also found, following the majority in Dotcom v Attorney-General, that the assessment of whether justice will miscarry is factual and contextual.47 All relevant surrounding circumstances may be considered.48
[47] The Court of Appeal considered that WorkSafe’s summary of facts, which accompanied the defective charging documents, provided Talley’s with sufficient notice of its alleged failures.49 The defect was therefore one of form only. That was because the particulars had been supplied but were merely in the wrong form. This was the very form of defect that s 379 of the CPA was designed for.50
[48] While s 379 of the CPA applied to save the charging document, the Court also considered the particulars would be confined to those set out in a summary of facts
42 Kirk v Industrial Court (NSW) [2010] HCA 1, (2010) 239 CLR 531.
43 Talley’s judgment (CA), above n 30 at [68].
44 At [70].
45 At [71].
46 At [71].
47 At [73], citing Dotcom v Attorney-General [2014] NZSC 199; [2015] 1 NZLR 745 at [30].
48 At [73].
49 At [74].
50 At [74].
delivered with the charges. If WorkSafe wished to expand the particulars, it would need to apply under s 133 of the CPA for an order to that effect.51
[49] Finally, the Court considered whether the prosecution ought to be stayed as an abuse of process.52 The principal focus was on Talley’s argument that the informant had filed a defective charge, the cusp of the limitation period as a “holding charge”, and that the practice was a serious misuse of criminal procedure amounting to an abuse of process. While the Court considered it was a matter of concern that WorkSafe had adopted such a poor charging practice, did not consider it to be so egregious as to undermine confidence in the integrity of the judicial process, and there was no suggestion WorkSafe acted in bad faith.53 In reaching that conclusion, the Court also had regard to the fact that WorkSafe altered its charging practices, such that in the future it would provide particulars within the charging document.54
The application for judicial review in the present case
The first cause of action—an error of law when considering STFC’s s 147 application
[50] The first cause of action is directed to the lawfulness of the Judge’s decision concerning the STFC’s s 147 application. Mr Pilditch advanced a number of criticisms of both the particulars contained in the charging document and the District Court’s reasoning when dismissing the application.
[51] First, Mr Pilditch sought to draw a close analogy between the prosecutor’s approach to charging in Talley’s and the present case. He invited the Court to infer that the charge, coming on the cusp of the limitation period, was no more than a holding charge of the kind criticised by the Court of Appeal. The particulars failed to fully and fairly inform STFC of the essence and pith of the charge it faced because all three refer only to failures to provide “adequate” information, passenger assessments and safety briefings. An adjective such as this was inherently vague and is insufficient to meet the requirements of s 17(4) of the CPA. The charges needed to identify with precision
51 At [77]–[78].
52 At [79]–[86].
53 At [84]–[85].
54 At [85].
and clarity the acts or omissions alleged to constitute the offence. The charging documents simply fail to do this.
[52] The applicants invited the Court to infer the pattern of charging conduct in the present case also amounted to an abuse of process. There was no clear evidence that MNZ had obtained expert advice before it laid the charges and the second amended summary of facts coincided with the provision of MNZ’s expert report. Mr Pilditch submitted I should conclude that the second amended summary of facts constituted a significant departure from the case presented in the limited particulars within the charging document.
[53] Turning to the District Court’s ruling, STFC argued that in considering the adequacy of the particulars in the charging document the Judge was required to turn his mind to the requirements of s 17(4) of the CPA and the Talley’s cases.55 The Judge did not address either in his reasoning. Instead, the Judge wrongly relied on the summary of facts to assess the sufficiency of the charging document and in doing so made an error of law. Judge Glubb was also wrong to say that the issue was whether the Court, on the basis of the charge “could reasonably convict”. That test is one of evidential sufficiency contained in s 147.56 But STFC had not brought its application on the basis of evidential insufficiency. Rather, the issue for the District Court was whether an improper charging practice had been adopted by MNZ amounting to an abuse of process. The Judge did not consider whether the charging practice MNZ adopted amounted to the holding pattern approach rejected in Talley’s.
Consideration
[54] The short answer to STFC’s first cause of action is that the charging document contains none of the defects identified by the Court of Appeal in Talley’s. The charging document in Talley’s contained no particulars whatsoever identifying the relevant omissions said to constitute the offence.
55 Mr Pilditch and the applicants placed as much if not more emphasis on the High Court’s decision in Talley’s as they did on the Court of Appeal’s.
56 Section 147(4)(b).
[55] In the present case the charging document against STFC identifies three particulars, set out at [15] above. The first particular is the failure to provide adequate information about bar crossing conditions and risks to passengers before departing. Those risks are further identified in the particulars as the “unpredictability of wave conditions even in favourable weather, and the potential physical impacts of bar crossings”. Similarly, the second and third particulars could not be much clearer: prior to departure the company failed to conduct an adequate passenger assessment to determine their “eligibility” to attend the fishing charter, and there was a failure to provide an adequate tailored safety briefing before departure. The use of the word “adequate” is unhelpfully vague, but STFC has itself identified in letters to MNZ what it says are the specific allegations derived now from the disclosure it has received. So, to the extent criticism is still made of the lack of precision of the particulars in the charging document it is a point that goes nowhere.
[56] There is no evidence establishing uncertainty or doubt on the part of the applicants about the case they must face. They do not argue that between the particulars in the charging document, the summaries of fact and the evidence that they do not understand the case they need to answer at trial. There was no suggestion a miscarriage will occur as a result of the lack of particulars in the charging document.
[57] For these reasons I am satisfied there is no defect in the charge against STFC. And even if there had been a defect, it is clear it is not one so essential as to render the charge a nullity, and I would have found it was capable of cure under s 379 of the CPA. The precision which the first applicant seeks is not required in particulars even in regulatory prosecutions. The specific details of the acts or omissions are provided by the evidence and, if a plea were to be entered, the summary of facts.
[58] Finally, I note that the Criminal Disclosure Act 2008 suggests a summary of facts must be:57
…sufficient to fairly inform the defendant of the facts on which it is alleged that an offence has been committed and the facts alleged against the defendant.
57 Criminal Disclosure Act 2008, s 12(1)(a). Emphasis added.
[59] In contrast, s 17(4) requires sufficient particulars to fully and fairly inform a defendant “of the substance of the offence”. The word “substance” here could be easily replaced with “the essence or pith”. Parliament has drawn a distinction between the level of abstraction of particulars in a charging document, which must reveal the substance of the offence, and the details contained in a summary of facts, which must fairly inform a defendant of the facts on which the offence is based. The applicants in the present case seek to elide the distinction and require a charging document to reflect a detailed factual narrative inconsistent in my view with the statutory requirements of criminal pleading.
[60] It follows that even if there is merit in the criticisms made of the reasoning of the District Court, the decision itself was nevertheless correct.
[61] In light of my conclusion on the adequacy of the particulars, it is unnecessary to consider whether the claimed defect in the charge and prosecutorial conduct amount to an abuse of process. However, on the evidence the applicants have not come close to the threshold necessary to establish one. This was not a case where a holding pattern charge containing no particulars had been used to circumvent a limitation period. On the contrary, the particulars contained in the charges laid against both defendants indicate the concerns identified by the Court of Appeal about WorkSafe’s charging practice in Talley’s were not repeated.
The second cause of action—an error of law in the decision dismissing Mr Robins’ s 147 application
[62] The second cause of action is based on an error of law in the District Court’s consideration of Mr Robins’ application for a discharge. It is again argued that the particulars in the charge failed to meet the requirements of s 17(4) of the CPA.
[63] In support of the claim Mr Pilditch developed a number of points. First the Judge proceeded on the mistaken premise that Mr Robins’ application was advanced on the basis there was no duty on Mr Robins under HSWA. However, Mr Robins has never denied that he owed duties under HWSA as an officer of a PCBU. The issue the defendant had put to the District Court for determination was that the charge fails to identify the reasonable steps Mr Robins needed to take to discharge his duty of due
diligence under s 44 of the Act. The charge against him — set out above at [18] — repeats the same particulars as those advanced against STFC as the PCBU and in doing so fails to make a fundamental legal distinction between the nature of the company’s duty under s 36 and that of its officer. MNZ has conflated the two duties and in doing so effectively imposed a form of vicarious liability on Mr Robins. Mr Pilditch submitted that view is wrong as a matter of law and the ruling failed to engage with the problem.
[64] Second, Mr Pilditch took issue with the Judge’s analysis and application of this Court’s decision in Sarginson v Civil Aviation Authority.58 In that case it was clear that the appellant’s “officer” duty was directed to the way Mr Sarginson loaded and subsequently flew a helicopter. However, in the present case, it was unclear whether the lack of due diligence arose from Mr Robins’ operational actions on the day of the sailing — namely his actions or omissions as skipper responsible for the charter on the day — or at a higher management or governance level — such as acquiring and keeping up to date knowledge of the activity and its risks, and gaining an understanding of the nature of the operation of the business and hazards. It was argued the summaries of facts “amorphously” cite elements at both an operational and governance level without articulating which due diligence elements Mr Robins failed to take.
[65] Related to the last submission is the apparent reliance of Mr Flanagan, MNZ’s maritime expert, on an English publication entitled Slamming Impact Accelerations Analysis on Small High-Speed Passenger Crafts. Mr Pilditch says it is unclear from the charge whether MNZ alleges Mr Robins failed to identify the information contained in that paper and apply it to the company’s operations. If it is part of the case against him, Mr Robins would be required to brief expert evidence on the applicability of the study to the vessel he operated. But neither the charge, nor the summary of facts, makes it clear whether the paper is a particular or fact relied on to establish a breach of the due diligence duty in s 44.
58 Sarginson v Civil Aviation Authority, above n 20.
Consideration
[66] I am unable to accept Mr Robins’ criticisms of Judge Glubb’s reasoning or the result. First, the Judge was satisfied the nature of the duty advanced against Mr Robins was “the same duty as Mr Sarginson”.59 In other words, the District Court understood MNZ’s case was advanced on the basis that the breach of Mr Robins’ due diligence duty stemmed from his operation of the fishing charter as skipper. In making this observation the Judge was not as Mr Pilditch submitted addressing the wrong question. Rather, he was articulating the basis on which MNZ was advancing the charge in response to Mr Robins’ claim that the underlying nature of the breach of duty was unclear and insufficiently particularised.
[67] The Judge then turned to the particulars in the charge, finding that with a minor amendment they captured the essence or pith of the offence, and provided sufficient clarity. He noted there was no apparent confusion arising from the charge, and that it was “readily discernible and in some detail” from the summary of facts what is alleged.60
[68] As MNZ submits, there is no suggestion that anyone other than Mr Robins was responsible for the operational acts and omissions that underpin the charges in this case. MNZ’s case is that Mr Robins was the human actor through whom STFC conducted its business.
[69] I therefore agree with the Judge’s assessment. Sarginson is clear authority for the proposition that where the actions of an officer cause a PCBU to breach its duty, that may amount to a due diligence failure. Sometimes the due diligence duty will require an officer to personally ensure the PCBU’s compliance with its primary duty because they are the person with direct control and influence over the PCBU’s activities. And it is for this reason, as MNZ submits, that the particulars in Mr Robins’ charge are “harnessed” to those against STFC — or mirror them. Under the heading “Officer Duty – Mr Robins” in both the first summary of facts and the second amended summary, there is express reference back to STFC’s failings:
59 District Court ruling, above n 2, at [39].
60 At [40]–[41].
77. Mr Robins failed to exercise due diligence by failing to do the following (as detailed further above at [48] to [63] to:
77.1 Ensure that STFCL, prior to departure, provided adequate information to potential passengers regarding bar crossing conditions and associated risks with bar crossings, in particular the unpredictability of wave conditions even in favourable weather conditions, and the potential physical impacts of bar crossings; and/or
77.2 Ensure that STFCL, prior to departure, conducted an adequate passenger assessment to determine passenger eligibility to attend the fishing charter and Patea bar crossing trip; and/or
77.3 Ensure that STFCL, provided an adequately tailored safety briefing to aid passenger safety when crossing the bar prior to departure.
[70] The summary of facts does not allege failings of any other type. MNZ has advised the Court its evidence does not do so either.
[71] Finally, there is again no suggestion Mr Robins does not genuinely understand the case he is required to answer. In a memorandum of counsel to the District Court for trial callover dated 2 May 2025, a matter of weeks before his application to this Court alleging a failure to comply with s 17(4) of the CPA, Mr Robins’ solicitors advised that they:
…now understand the allegations against Mr Robins as an officer to be based on Mr Robins’ conduct as master on the day of the incident and [are] now preparing for trial on that basis.
[72] That there is no uncertainty about the nature of MNZ’s case or unfairness to Mr Robins is put beyond doubt by a “table of allegations” appended to counsel’s submissions which meticulously identify the specific factual allegations Mr Robins has identified emanating from:
(a)The charging document and its particulars;
(b)The first and second summaries of facts; and
(c)Mr Flanagan’s expert report of 22 May 2023.
[73] For these reasons there is no merit in Mr Robins’ criticisms of the charging document. The real issue is whether he understands the case against him. It is clear that he does. That understanding is hardly derived from the charging document alone. It stems from the summaries of facts, the evidence he has received and his consideration of MNZ’s submissions in response to his challenges to the charge.
Third cause of action—irrelevant considerations when finding no abuse of process
[74] As I have found that the charging documents are not defective I deal with the third cause of action briefly.
[75] The applicants plead Judge Glubb relied on “either or both” the first and second summaries of facts to find there had not been an abuse of process. The Judge held that the charges were filed within the limitation period and that subsequent service of the first summary of facts in accordance with the temporal requirements of the CDA “means that it too was served not later than the applicable date as required”.61
[76] However, Mr Pilditch submitted that both Courts in Talley’s recognised that where a charge is deficient so as to require reference to the summary of facts, if that summary was not served within a statutory limitation period the defective charge will almost certainly be a holding charge of the kind the Court of Appeal found was inappropriate. It was therefore irrelevant that the first summary in the present case was supplied in accordance with the requirements of the CDA. That is because the timing issue in the present case arises from the limitation period, not compliance with the obligation to make disclosure of the summary of facts no later than 15 working days after the commencement of a criminal proceeding. The Judge’s reliance on the summary of facts and its timing was therefore an irrelevant consideration, and again highlighted a failure by the District Court to contend with the real issue, namely whether there had been an abuse of process by virtue of the charging practice adopted in their case and the subsequent actions of MNZ.
[77] Building on the Judge’s apparent reliance on the summary of facts, the applicants argue that given it was served after the limitation period, the Court should
61 At [9].
conclude the prosecution is an abuse of process. Mr Pilditch invited me to infer that MNZ had not obtained expert guidance from Mr Flanagan before laying the charges, and his subsequent report coming months after the limitation period was confirmation of an improper charging practice.
Consideration
[78] The applicants have fallen well short of establishing an abuse of process. I have already found the particulars in the charging documents were sufficient to meet the requirements of s 17(4). It also follows that there is nothing in the applicants’ point that the first summary of facts was served after the statutory limitation period had expired, or that it was amended in May 2023 following the receipt of Mr Flanagan’s expert report.
[79] It is clear from the ruling that the Judge’s reference to the summary of facts was a response elicited by the challenge made by the defendants to the adequacy of the particulars in the charging documents and the timing of service of the first summary of facts. The Judge had already found that with a minor amendment the particulars in the charge against Mr Robins “capture the essence or pith of the allegation”.62 Under the heading “Introduction” the ruling, at [9], records the Judge’s finding that the charges “were filed within the requisite limitation period”. He then went on to find that “the provision of the summary of facts at the time the summons were served means that it too was served not later than the applicable date as required”.63 Nowhere in the ruling does the Judge say there were deficiencies in the charging documents requiring recourse to the summary of facts.64 The Judge subsequently observed the amendment of the summary of facts on 22 May 2022 was “an adjustment rather than a re-cast”. I agree with that assessment.
62 District Court ruling, above n 2, at [41].
63 At [9].
64 First, in relation to STFC, he says at paragraph [32] that “I am satisfied that the charging document itself is not defective, nor for the matter is the nature of the jeopardy in doubt when consideration is had to the summary of facts provided.” Second, in relation to Mr Robins, he says at paragraph
[41] that “I am satisfied that the particulars as articulated in the charge capture the essence or the pith of the allegation. They provide sufficient clarity to fully and fairly inform. There is no apparent confusion, and it is also readily discernible and in some detail, in the summary of facts what is alleged.” Both passages clearly show that the Judge considered the charging notices themselves are clear, and considered the summaries of facts only as additional material.
[80] Regardless, even if the summary of facts involved the introduction of entirely new details of the prosecution case it would not support a claim of abuse of process. The applicants appeared to equate the limitation period with a restriction on subsequent alterations of particulars and amendments to a summary of facts. That is not an accurate reflection of the law. Particulars may be amended at any time before verdict.65 The CPA provides that where there is a variance between the proof at trial and the charge, the court must amend the charge if the defendant has not been misled or prejudiced.66 Even where the defendant has been prejudiced the court may still consider amending the charge where the prejudice can be addressed through adjournment of the trial.67 It follows the statutory limitation period for filing a charge under the HWSA does not prevent a prosecutor from introducing new evidence and it does not prevent a court from amending particulars to conform with that evidence.
[81] This conclusion is consistent with that of the Court of Appeal in R v Holt.68 The case concerned a limitation period for the filing of the relevant charges where an application for amendment had occurred after the limitation period had expired. The Court concluded there is “no doubt” that an amendment falling short of the substitution of a new charge may relevantly be made outside the limitation period.69 The Court went on to consider examples of cases involving the proposed amendment of defects in a charge and those involving effective substitution of a new charge:70
[33] The question of whether an amendment in a given case carries limitation consequences will sometimes give rise to difficulties. It will often be a matter of degree. The extent to which the amended charge reflects the same “transaction” will be relevant. The interests of justice will be paramount. As always, those interests entail recognition of the rights both of the defendant and the community represented by the Crown.
[…]
[50] …The fact that a proposed amendment may involve the introduction of new or different legal elements into a prosecution will not necessarily preclude the grant of an amendment. While that will be an important factor in the overall inquiry, it will not be determinative. The outcome of an application for
65 CPA, s 133(1).
66 CPA, s 136(2).
67 CPA, s 136(3)-(4).
68 R v Holt CA59/06, 30 May 2006, [2006] DCR 669.
69 At [23].
70 The respondent notes that Holt and the propositions arising from it were cited by Maritime in its submissions filed in the District Court, at paragraphs 100(c) and 101.
amendment will depend upon a balancing of the various relevant factors in a given case.
[82] This reasoning survived the enactment of the CPA.71 In Ihaia v R, the Court of Appeal considered Holt and went on to find:72
[59] There is accordingly no dispute that the time bar does not prevent the amendment of the previous charge to one or more less serious charges under s 133 of the CPA. The interests of justice are paramount when considering whether a particular substitution is appropriate. Relevant considerations in this inquiry include:
(a)the extent to which the amended charge arises out of the same or substantially the same facts as the original charge;
(b)the potential prejudice to the defendant, particularly if the amendment will result in the defendant facing a more serious charge;
(c)whether the amendment is only technical or for the purpose of curing a technical defect;
(d)whether the prosecution failed to lay an appropriate charge from the outset;
(e)the extent of any delay in seeking to amend the charge; and
(f)whether the amendment procedure is being unfairly utilised to circumvent the operation of the limitation period.
[83] Finally, there is nothing in the evidence suggesting there has been an improper charging practice in the present case. Both charging documents contained particulars distinguishing the current charges from those criticised in Talley’s. MNZ engaged Mr Flanagan to review documentation and draft particulars, and provide initial comments on 9 December 2022, before the charges were filed. While his response is not available it is obvious MNZ appreciated the importance of expert evidence and sought advice before the charges were filed. That Mr Flanagan’s detailed report followed some months later does not support the inference the applicants invited me to draw, that MNZ had filed a holding pattern charge without expert advice and had acted unlawfully to avoid a statutory limitation period.
71 Stewart v Police [2019] NZHC 2086, [2019] NZAR 1638 at [16]—[23] as cited in Ihaia v R [2022] NZCA 599 at [59].
72 Footnotes omitted.
Fourth cause of action—failure to provide reasons in relation to Mr Robins’ application
[84] Mr Robins applied to the District Court for dismissal of the charge on the grounds that the evidence failed to disclose how, as an officer, he breached his duty. In determining that argument it is said the Judge failed to address the evidence. Instead, he simply concluded that the “totality of the available witness evidence, including that of Mr Flanagan” was sufficient for Mr Robins to answer the case.73 Mr Flanagan in fact, “gave no substantive evidence about Mr Robins’ duties as an officer” or what he failed to do. Therefore, according to the applicants, the Judge provided “no reasons whatsoever”.
Consideration
[85] The primary issue Mr Robins had asked the Judge to consider was the lack of clarity about the duty he was alleged to have breached. Mr Robins’ argument based on evidential sufficiency was closely linked to that point. As the Judge recorded:74
[Mr Robins] submits that there is no case to answer because if the alleged duty does not exist, there can be no breach of duty. He further submits there is no evidence capable of supporting a finding of guilt after review of the evidence collated.
[86] The Judge’s reasons supporting his conclusion on evidential sufficiency were briefly stated:75
…on an assessment of the evidence, and noting the totality of the available witness evidence, including that of Mr Flanagan, I am satisfied when viewed in the context of the overall prosecution case, there is a case for Mr Robins to answer. I dismiss the application pursuant to s 147.
[87] There is no general common law duty on a decision-maker to provide reasons.76 However, where a statute specifically requires reasons, the reasons given
73 District Court ruling, above n 2, at [43].
74 At [20].
75 At [43].
76 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75].
must be “adequate to the occasion”.77 The standard of adequacy is flexible and is a context and fact-specific question.78 Relevant factors include:79
(a)the function and role of the decision-maker;
(b)the significance of the decision;
(c)the rights of appeal available; and
(d)the context and time available to make the decision.
[88] The requirement for adequacy does not prevent reasons from being stated briefly or abbreviated.80 As I said in a recent decision, adequacy “has no minimum word count; it is the substance, not the length, that is important”.81
[89] I am satisfied the Judge’s reasons were adequate for the occasion. While more could have been said ultimately the reason provided by the District Court was sufficient for Mr Robins to understand the outcome as the disappointed party. The law does not require a judge to set out the evidence said to meet the elements of a charge provided the decision identifies the evidence on which that conclusion is based. In the present case the Judge referred to “the totality of the available witness evidence, including that of Mr Flanagan”. That was sufficient as a matter of law. Counsel before me did not argue the Judge’s ultimate conclusion — that based on an operational duty the evidence was sufficient to allow the charge to proceed to trial — was wrong. So the criticism of the Judge’s reasons goes nowhere.
[90] I therefore dismiss the fourth cause of action and with it the application for judicial review.
77 R v Awatere [1982] 1 NZLR 644 (CA) at 649.
78 Rayonier New Zealand v Canterbury Regional Council [2024] NZHC 1478 at [166].
79 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2017] NZHC 2387, [2018] NZRMA 1 at [103]–[104].
80 Lewis v Wilson & Horton Ltd, above n 76, at [81].
81 Aitken v Judicial Conduct Commissioner [2025] NZHC 987 at [71].
Should the appeals be allowed and further particulars ordered?
[91] As I have noted, there was significant overlap between the application for judicial review and the appeal. Having dealt with the former, the focus of the appeal becomes Judge Glubb’s conclusions on the two separate applications to amend the charges under s 133 of the CPA.
[92] The first application was by STFC to amend the charging document to expand the particulars as detailed in the summaries of facts. The second was an application by MNZ to amend the charging document against Mr Robins by adding the words “by taking reasonable steps to” after the words “due diligence” as they appear in the text of the charge.
[93] In his ruling Judge Glubb noted STFC’s submission that the charge against it needed to be amended to meet the requirements of s 17 of the CPA.82 He found the charge against the company was compliant with s 17 and no further amendment was required.83 He also held that the amendments to Mr Robins’ charge as sought by MNZ was one of form rather than substance that added a degree of clarity to the allegations.84 In doing so he held that the amended charge was compliant with s 17 as well.85
Jurisdiction for appeal and leave to appeal
[94] Section 296 of the CPA provides that a prosecutor or a defendant may, with leave, appeal “on a question of law against a ruling by the trial court”.86 The question(s) of law must arise in proceedings that relate to or follow the determination of the charge, or in the determination of the charge.87
[95] A question of law is one which raises “one or more of the three standard errors classified by modern authorities as creating a question of law”:88
82 District Court ruling, above n 2, at [18].
83 At [34].
84 At [40].
85 At [41].
86 CPA, s 296(2).
87 Section 296(3).
88 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16] (footnotes omitted).
(a)a misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);
(b)oversight of a relevant matter, or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[96] In Linfox Logistics (NZ) Ltd v Worksafe, Woolford J concluded that there is jurisdiction for the Court to grant leave to appeal against a decision to amend (or to decline to amend) a charge.89
[97] While acknowledging it was arguable that there was jurisdiction for an appeal relating to the amendment of the particulars of a charge, MNZ invited the Court to distinguish the decision in Linfox and find otherwise. If jurisdiction was found, the respondent argued leave to appeal should not be granted.
[98] However, given Woolford J’s reasoning in Linfox it would seem most likely that jurisdiction exists for the applicants to bring the current appeal with leave. Nor am I satisfied it would be appropriate to decline leave without addressing the merits of the appeal itself. MNZ did not point to any prejudice in support of its position.
[99] I will therefore deal with the remaining points raised by the appeal, preferring the questions of law framed by the second respondent to that of the applicants. Those questions are:
(a)For STFC, was the Judge’s conclusion that there was no need to amend the charging document plainly wrong?
(b)For Mr Robins, was the Judge plainly wrong in his application of the test in s 133 when allowing the amendment to the charging document proposed by MNZ?
89 Linfox Logistics (NZ) Ltd v Worksafe, [2018] NZHC 583 at [12], [21], [23]–[24].
Was the Judge’s conclusion that there was no need to amend the charging document for STFC plainly wrong?
[100] Mr Pilditch argued for the company that the Judge was plainly wrong to conclude the particulars of the charge ought not be amended to identify the acts or omissions relied on by the prosecution. Both parties before the District Court appeared to agree the relevant acts or omissions were contained in the summary of facts. While Judge Glubb referred to the summary when considering the “nature of the jeopardy”, he did not identify which summary he was referring to or the relevant acts or omissions. As the second respondent “refuses” to confirm the acts or omissions relied on to establish the offence, it is “clearly necessary” to make amendments to the charge so the defendant company and the Court has certainty on the allegations and the matters the prosecution seeks to prove. The importance of the order under s 133 is all the more important because MNZ “has signalled that it did not consider it was limited to acts or omissions in the summary of facts”, and it could rely on its expert evidence.
[101] I do not accept these arguments and I am certainly not satisfied STFC has established the Judge’s refusal to order the particulars it had identified was plainly wrong.
[102] For the reasons set out above, it is clear the Judge turned his mind to the appropriate test and applied it correctly. The purpose of particulars is fairness. They must fully and fairly inform a defendant of the substance of the charge as opposed to the facts in issue. The individual factual allegations the prosecution wishes to establish to prove a charge will be ascertained from all of the relevant materials made available to a defendant, including the witness statements and exhibits. As Faire J said in this Court in Talley’s, the charge is not the vehicle to tell the whole story. To the extent the applicants contend there could be other matters unknown to them that may arise at the hearing, their remedy would lie in an application to the District Court based on the alleged prejudice. But currently that is a hypothetical problem.
[103] I have already found there is no basis on which the applicants can claim they do not understand the case they must answer at trial. I therefore agree with the District Court’s conclusion that the particulars sought by STFC are unnecessary and inappropriate in a charging document.
[104]For these reasons the appeal by STFC is dismissed.
Was the Judge plainly wrong in his application of the test in s 133 when allowing amendments to the charging document against Mr Robins as proposed by MNZ?
[105] The amendment made by the Judge did no more than ensure that the words of s 44(4) of HSWA—“by taking reasonable steps to”—were more clearly included in the charging document against Mr Robins. This was an obvious example of an amendment going to form rather than substance. As I questioned at the hearing, it is arguable the amendment was unnecessary given the primary duty in subs 44(1) is one of “due diligence to ensure that the PCBU complies” with its own duty. Subsection 44(4) is merely illustrative of reasonable steps that are included in the requirement to exercise due diligence.
[106] The amendment did not involve an entirely new charge, a recasting of the case or the introduction of new particulars. In short, it responded to one of the criticisms Mr Robins had made to the way the charge was framed.
[107] For these reasons I am not satisfied the Judge’s decision was plainly wrong, and Mr Robins’ appeal must also be dismissed.
Conclusion and result
[108] The application by STFC for judicial review of the District Court’s ruling is dismissed.
[109] The application by Mr Robins for judicial review of the ruling is also dismissed.
[110] To the extent the appeals are not resolved by those orders, they are also dismissed.
[111] There are no exceptional circumstances in the current case supporting judicial review and I would have struck out the application had I not dealt with it on its merits.
[112] This conclusion may have consequences in terms of costs. If the parties are unable to resolve that question they may file memoranda of no more than three pages in length. I will then likely determine the issue on the papers. I would certify for second counsel.
Isac J
Solicitors:
F Pilditch KC, Richmond Chambers, Auckland for appellants/applicants McElroys, Auckland for appellants/applicants
Luke, Cunningham & Clere, Wellington for respondents
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