Sproull v Worksafe New Zealand
[2022] NZCA 40
•7 March 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA291/2021 [2022] NZCA 40 |
| BETWEEN | DANIEL REUEL SPROULL |
| AND | WORKSAFE NEW ZEALAND |
| Court: | Collins, Duffy and Dunningham JJ |
Counsel: | A Shaw for Applicant |
Judgment: | 7 March 2022 at 9.30 am |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Duffy J)
The applicant, Daniel Sproull, seeks leave to bring a second appeal against his conviction in the District Court on two charges under s 176 of the Health and Safety at Work Act 2015 (the Act).[1] Judge Krebs found that Mr Sproull failed to give all reasonable assistance to WorkSafe Inspectors (the Inspectors) to exercise their powers under the Act. Mr Sproull was fined $2,000 on each charge.[2] The convictions were upheld by Mander J in the High Court.[3]
[1]WorkSafe New Zealand v Sproull [2020] NZDC 25821.
[2]WorkSafe New Zealand v Sproull [2021] NZDC 195.
[3]Sproull v WorkSafe New Zealand [2021] NZHC 902.
The leave application essentially raises the following issues: (a) whether there was a proper basis for the High Court to allow the prosecution to adduce further evidence; (b) absent the further evidence, whether there was sufficient evidence to prove the Inspectors’ appointments were valid; and (c) whether the convictions were entered contrary to ss 25(a) and/or 27(1) of the New Zealand Bill of Rights Act 1990.
Background
The convictions followed Mr Sproull’s failure to facilitate inspections of the work sites operated by a company of which he was a director. When the Inspectors sought to inspect the work sites, Mr Sproull queried their appointment. WorkSafe gave him copies of the Inspectors’ respective letters of appointment. Mr Sproull still did nothing to facilitate the inspections. Charges were laid against him. Before and at the Judge-alone trial in the District Court, Mr Sproull represented himself.
The disclosure WorkSafe gave to Mr Sproull prior to the trial did not include copies of the letters of appointment that he had earlier received from WorkSafe. Mr Sproull informed WorkSafe it had not disclosed all documents relating to his case, including “the details of delegation which have not been provided”. WorkSafe realised that he had not been formally provided with the Inspectors’ letters of appointment as part of its disclosure obligations and so they were given to him again.[4] Nothing else relevant to “delegation” was provided to him.
[4]The Criminal Disclosure Act 2008, ss 12–19 set out the disclosure requirements of prosecutors.
Subsequently in a memorandum filed in the District Court WorkSafe wrongly stated:
In relation to the defendant’s request for “details of delegation”, the prosecutor is unsure of the nature of document or documents that are sought. It is noted that the appointment of inspectors is carried out by the Chief Executive of WorkSafe, such that no issue of delegation arises.
WorkSafe now accepts that the statement “no issue of delegation arises” was incorrect. The disclosure had not addressed the issue of the Chief Executive’s delegated authority to appoint the Inspectors. It seems nothing more was said about disclosure of delegation issues at the time. The prosecution went to trial. During the course of the trial WorkSafe called evidence to produce the identity cards issued to the Inspectors under s 164 of the Act and the letters of appointment signed by the Chief Executive. It also confirmed in evidence that the Inspectors had been continuously employed by WorkSafe since the date of their respective appointments.
Mr Sproull did not cross-examine the prosecution witnesses and he did not make any submissions to the Court. Accordingly, nothing was done to put in issue the Chief Executive’s authority to appoint the Inspectors or the validity of their letters of appointment. The Judge found the charges proved and convictions were duly entered.
When the appeal was brought in the High Court Mr Sproull was legally represented, and for the first time the issue of the Chief Executive’s authority to appoint the Inspectors was clearly raised in court. Mander J accepted that the authority to appoint the Inspectors was vested in the WorkSafe Board and that the Chief Executive could only make these appointments using authority delegated to him by the WorkSafe Board. It was accepted that this matter was not covered in evidence at trial.
Mander J allowed WorkSafe to produce further evidence on appeal which proved that the WorkSafe Board had properly delegated their appointment powers to the Chief Executive. Mander J essentially found Mr Sproull’s resistance to the admission of this evidence and his arguments that the prosecution case would otherwise be missing proof of a vital element to be technical and ineffective. Accordingly, the appeal was dismissed, and the convictions were upheld.
The current appeal
Mr Sproull contends there was a failure by WorkSafe to make full disclosure of relevant documents in the District Court. Additionally, in the District Court, counsel for WorkSafe did not argue that the WorkSafe Board had lawfully delegated the power to appoint inspectors to the Chief Executive. Leading up to the trial, WorkSafe expressly disavowed that the issue of delegation was relevant to whether the Inspectors were validly appointed. During the hearing of the appeal, counsel for WorkSafe sought and was granted leave to adduce documents for the first time showing the WorkSafe Board had delegated the power to appoint WorkSafe inspectors to the Chief Executive. Mr Sproull contends there was no proper legal basis in the circumstances of the case for admitting such evidence on appeal. Further, the application for leave to appeal involves matters of general or public importance and there is a real risk that a miscarriage of justice has occurred through wrongful conviction.
On the other hand, WorkSafe contends leave should be refused on the ground Mr Sproull has not established that the proposed appeal raises an issue of general or public importance nor that there may be a risk of miscarriage of justice should the leave application be declined.
Discussion
We are satisfied that the proposed appeal does not raise any issue of general or public importance and there is no risk of miscarriage of justice should the leave application be declined.
The issues the proposed appeal raises about proof of the authority of the Inspectors to bring the prosecution are unique to this prosecution. In R v O’Connell this Court identified three matters relevant to authority to bring a prosecution (albeit this was done in the context of the prosecution of a charge for which leave to commence from a designated person was first required):[5]
… we consider the position at trial to be (1) in the absence of objection on behalf of a defendant the existence of any necessary leave or consent to prosecute will be presumed; (2) if no evidence of authority is given and the point is raised after the close of the prosecution case leave should ordinarily be given to prove the authority; (3) if without objection being taken it emerges at trial that there was in fact no authority the point should be allowed and will be decisive.
[5]R v O’Connell [1981] 2 NZLR 192 (CA) at 196.
Further, the Court of Appeal made it clear that any objection from a defendant needed to be clearly stated:[6]
Any objection should be clearly taken. In the present case we do not think it was; Mr Young [defence counsel] himself frankly conceded it was put obliquely. It must be taken clearly because the prosecution may wish to apply for leave to call evidence to cover the matter.
[6]At 197.
Here Mr Sproull never made any objection about proof of the chain of delegation during the trial. We acknowledge that before trial he sent communications to WorkSafe which queried the chain of delegation. But raising such queries before trial is not the same as objecting at trial to the Inspectors’ authority to bring the prosecutions. As this Court recognised in R v Gilchrist, whether there is relevant authorisation to commence a prosecution does not hinge on the prosecution’s pre‑trial communications with a defendant; rather it is something that is capable of proof at trial.[7]
[7]R v Gilchrist (2006) 22 NZTC 20,043 (CA) at [24]. The decision was delivered prior to the Criminal Procedure Act 2011; however, the principles it identifies remain applicable under the present legislation.
If Mr Sproull had made the requisite objections during the trial, the likely outcome is that in accordance with R v O’Connell, the trial Judge would have given WorkSafe the opportunity to adduce evidence establishing the Chief Executive’s delegated authority to appoint the Inspectors. Such evidence clearly exists, as it was adduced at the first appeal. So, there is no risk the convictions have resulted in a miscarriage of justice through being brought by persons who in law lacked the authority to take this action.
We accept that as a self-represented litigant Mr Sproull may have been unaware of the need to make his objections regarding delegation at trial. But such lack of knowledge cannot allow him to avoid the legal consequences of failing to take the appropriate step at trial. As we have explained, had he done so the appropriate response from the trial Judge would have been to allow WorkSafe to call evidence relevant to proof of the delegation.
WorkSafe’s failure to provide Mr Sproull with all information relevant to the delegation issues (as he had requested in pre-trial disclosure) is a cause of concern because, in principle, it could have affected whether a guilty plea was entered or not, which is something that influences sentencing. However, that is an outcome for which allowance can be made at sentencing. Failure to make pre-trial disclosure of information relevant to the delegation of authority to prosecute is not a basis for dismissing an otherwise properly brought and proved prosecution. It follows that ss 25(a) and 27(1) of the New Zealand Bill of Rights Act are not engaged.
We acknowledge that matters were not helped here by WorkSafe’s error in the memorandum it filed in the District Court stating no delegation issues arose. However, we reject Mr Sproull’s arguments that he was entitled to rely on this or any other erroneous statements. Such errors on the part of WorkSafe cannot change the true factual and legal position of the Inspectors’ authority to prosecute. Mander J was right to find that in the absence of Mr Sproull identifying some defect or other evidence to challenge the validity of the charge notice, s 74(2) of the Crown Entities Act 2004 operated to establish that the charge was laid by a properly authorised officer. Whether lawful authority to prosecute exists in fact and law is not capable of being influenced by how a prosecution is conducted.
The circumstances of this case are fact specific. The outcome does not raise any matter of general or public importance. The relevant law is well settled. No miscarriage of justice has occurred. The argument for Mr Sproull is technical and if successful would have someone who was prosecuted by those with authority to do so and against whom all other elements of the charge were properly proven escape conviction because at trial WorkSafe failed to realise delegation of the authority to prosecute was in issue. Such an outcome would be wrong and contrary to justice.
For completeness we note that if Mander J had decided not to allow fresh evidence on appeal, the appropriate alternative step would have been for him to refer the prosecution back to the District Court for re-hearing. Had this occurred the relevant evidence of delegation would then have been adduced and Mr Sproull would still have been convicted.
Result
The application for leave to appeal is declined.
Solicitors:
Bytalus Legal, Auckland for Appellant
WorkSafe New Zealand, Auckland for Respondent
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