Teki v Wanganui District Council HC Wanganui CRI 2010-483-17

[2010] NZHC 1373

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2010-483-000017

BETWEEN  ELWYN ANTHONY TEKI Appellant

ANDWANGANUI DISTRICT COUNCIL Respondent

Hearing:         14 April 2010

Counsel:         Appellant in person

B J Pearce for Respondent

Judgment:      14 May 2010 at 11.30am

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 11.30am on the 14th day of May 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1] The appellant appeals against his conviction in the District Court at Wanganui on 25 September 2009 on an information laid by the respondent Council under s 168 of the Building Act 2004 of failing to comply with a Notice to Fix issued under s 164 of the Act.

[2]      The appellant was the owner of a building at 222 Somme Parade, Wanganui. He was in the process of carrying out building work on that building.  He had not obtained a building consent.  The building was fitted out as a dairy.  Two building control officers from the Council visited on 28 August 2008 and confirmed that work was being carried out.  On 2 September 2008 the Council served the appellant with a Notice to Fix issued under ss 164 and 165 of the Act.  The building officers visited

on 3 September.  The particulars of contravention and non-compliance were stated in

TEKI V WANGANUI DISTRICT COUNCIL HC WANG CRI 2010-483-000017  14 May 2010

the notice as “building work without building consent as detailed in the Building Act

2004 s  40”.  The notice said:

To remedy the contravention or non-compliance you must:  stop all building work and make site safe for public access and apply for a building consent for the proposed work.  No building work is to proceed until a certificate for public use and a building consent is approved.

This notice must be complied with by:  stop work immediately.  Apply for a consent by 17.9.08.

[3]      On 10 September 2008 a further site visit was made, which found further work had been carried out.

[4]      An    information    was    laid    on    18 February 2009,    alleging    that    on

18 September 2008 the appellant committed an offence against s 168(1) of the Act in that he failed to comply with a notice to fix by 17 September 2008. The matter was set down for a defended hearing on 17 June 2009. At the hearing leave was granted to amend the information in two respects:

(a)      To   alter   the   date   of   the   alleged   offence   to   read   “between

3 September 2008 and 18 September 2008”; and

(b)The alleged offence was amended to read “failed to comply with a Notice  to  Fix  by  17 September 2008  by  continuing  to  do  other unauthorised work in breach of the Notice”.

[5]      The Council called two witnesses, two building control officers who had carried  out  the  inspections,  Mr Tantrum  and  Mr Hoobin.    The  appellant  gave evidence in defence.   The decision was reserved, and judgment was delivered on

25 September 2009.  The appellant was found guilty.  The appellant was sentenced on 7 December 2009 to a fine of $6,500 plus Court costs and solicitor’s costs.

[6]      The information did not, either in its original form or as amended, give particulars of the unauthorised work alleged to have been carried out in the period alleged in the information.   The Judge said that there is no doubt that work was carried out, but held that if it merely constituted maintenance or it was necessary to make the site safe then no liability arises.  The appellant’s actions would have been

reasonable in any event if that was so.  The Judge dealt with three aspects of work which the informant relied on as unauthorised work:

(a)       The gib lining of the wall;

(b)      The laying of vinyl on the floor; and

(c)       The installation of two new sinks.

[7]      He was not satisfied that the laying of the vinyl was unauthorised.  On the other two matters, he held the appellant to have been in breach.

[8]      The appellant raises essentially five grounds of appeal which are set out in the Notice of Appeal.  These are:

(1)       No time to prepare;

(2)       Wall not a structural wall; (3)   New evidence;

(4)       Legal advice that attitude has no bearing;  and

(5)       Not in the public interest.

[9]      The essence of the first of those grounds is that the appellant was not made aware of the allegations which he faced with sufficient particularity to enable him to prepare for the hearing.  He says that he was unaware of there being an issue about the sinks or the walls until a day or so before the hearing, and this gave him no time to prepare.

[10]     I consider that there is considerable force in the appellant’s submission.  The Council case was based on the premise that work had been  carried out by the appellant between 3 September and 18 September.   Under s 17 of the Summary Proceedings Act 1957, the information was required to contain “such particulars as

will fairly inform the defendant of the substance of the offence with which he is charged”.  Particulars of what work the officers alleged had been carried out in that period, in breach of the Notice, ought to have been provided.  That was particularly necessary because of the matter referred to by the Judge, namely that if work carried out merely constituted maintenance or was necessary to make the site safe, then no liability would arise.   The appellant was entitled to particulars of the case alleged against him, sufficient to enable him to properly defend those allegations.   Those particulars should have specified the work which it was alleged was in breach of the notice to fix.   The original information was deficient in not giving the necessary particulars.  The subsequent amendment by leave at the beginning of the hearing did not adequately address the situation.  That came too late to enable the appellant to realistically prepare his defence.   Further, it did not particularise the allegedly unauthorised work.

[11]     Counsel for the respondent submits that adequate notice had been given, in that disclosure was provided to defence counsel from 15 April 2009 onwards, and that this included the relevant parts of the Council’s file, including the notes taken by the Council officers, which were relied upon by them at the defended hearing and upon which they were cross-examined.  Disclosure is an important aspect of criminal procedure.   It is not, however, a substitute for proper particularisation of charges. The case which the defendant faces must be specified in the information.  It is not for a defendant to attempt to determine, from disclosed material, what the prosecution case is.

[12]     Among the material made available on disclosure was apparently a summary of facts.  It might have been expected that the prosecution case would be squarely stated in that statement.   The alleged unauthorised work was not specified or particularised in that summary.  The summary simply referred to “additional building work” and “further unconsented building work” having been undertaken.

[13]     Counsel for the respondent further submits that the appellant was represented by counsel prior to and at the hearing, and in written submissions after the hearing counsel notes that no objection was raised at the hearing and that if the appellant considered himself prejudiced by late notice of the basis of the prosecution, this was

not reflected in his counsel’s submissions following the defended hearing, and that the appellant fully met the prosecution’s case on its merits without complaint.  There is some force in those submissions.  I do not regard the absence of a complaint at the time as fatal to the appellant’s appeal.  It does, however, require a closer examination of the basis of the Judge’s finding, to assess whether there has been prejudice to the appellant.

[14]     The first breach found by the Judge was the work carried out in the period specified in the information in the gib lining to the wall.  The appellant’s contention was that that work was not a breach of the Notice for two reasons:

(a)       That it was necessary to make the site safe; and

(b)That part of the work did not require a building consent, because the wall was not a structural wall.

[15]     The  Judge’s  finding  on  the  first  issue  was  expressed  very  briefly.    He accepted that if the appellant’s contention that he only completed that work to make the site safe was correct, then that would not be in breach of the Notice.  However, he did not accept that, and said that his understanding of the evidence was that it had no bearing on any possible public access.

[16]     The evidence for the prosecution was  given by the two building control officers, Mr Tantrum and Mr Hoobin.   The evidence on this point was that when Mr Hoobin was asked by counsel what kind of work was necessary to make the site safe, he said “by that stage we were probably satisfied that the site was safe”.  He also stated that in order to prevent people from getting in “you could, ideally, just put a piece of [plywood] or something like that ... or put a cabinet or something in front of the door”.  When he was asked whether there was any discussion with Mr Teki over that method of making the site safe, he said:  “Well from my recollection not explicit ways to do it”.  He could not recall whether Mr Teki asked how to make the site safe.  Mr Teki’s evidence was that he had gib lined the wall to stop the public getting in and to stop anybody else getting in there.  He was not cross-examined on that explanation.

[17]     Mr Hoobin’s opinion on what was necessary to make the site safe was not necessarily definitive on this question.   The unchallenged evidence of Mr Teki on this point required consideration.  Thus, while I would not be prepared to disturb the Judge’s factual findings on this point, I consider that the lack of clarity on, or a fuller discussion of, the need or otherwise for the gib lining work for making the site safe is at least in part attributable to the lack of particularity in the information, to an extent which may have caused prejudice to the appellant.

[18]     As to whether or not the wall was a structural wall, the Judge simply said “The wall itself needed a building consent, as it was structural”.   The prosecution evidence was not specifically addressed to the issue of whether the wall was a structural wall.  The plan produced in evidence showed three internal walls within the building.  It indicated that, on two of these walls (marked yellow on the plan), work had been carried out by the time of the first site visit on 28 August.  That work did not form part of the charge.  The allegedly infringing work was work on the third wall (marked orange on the plan), plus lining of one of the two walls just mentioned. There were also other walls (marked blue on the plan) on which Mr Tantrum’s evidence was that Mr Teki had been told that he could legally install new gib board, to make the site safe.   Mr Tantrum’s evidence was that one of the walls marked yellow had been removed and a lintel installed, and that that alters the bracing and it is a structural wall.  That work had been carried out before the 28 August visit, and was not part of the charge.  That point was established in the cross-examination of Mr Tantrum.  Mr Tantrum did not, in his evidence, clearly state whether or not the wall allegedly lined in breach of the notice was a structural wall.  Mr Hoobin in his evidence did not clearly identify the wall in question as a structural wall.  I do not consider, having reviewed the notes of evidence, that there is clear evidence that the actual wall which was gib lined in the period was a structural wall.  Certainly, the actual work carried out, namely gib lining, was not itself structural work.  Again, I consider that the lack of particularity in the information has potentially contributed to the lack of clarity on this issue, to an extent where the appellant may have been prejudiced.

[19]     Dealing with the second aspect of the work which the Judge found to be in breach,   the   installation   of   new   sinks,   the   Council   witnesses   accepted   that

replacement work would be covered under maintenance.  It was not in dispute that there had previously been at least one sink, which could have been replaced.  The essence of the Council case was that one sink had been replaced by two, and that that went beyond maintenance.  The appellant contends that there had originally been a single sink unit with two bowls in it.  The Judge said:

I accept that the defendant was entitled to replace like with like.  However, although the evidence is somewhat confusing, I am not satisfied that is what he did.

[20]     I agree with the Judge’s description of the evidence as somewhat confusing. Mr Teki submits, in support of the appeal, that, had he known that this was a matter in issue, he could have adduced evidence on the point.  He produced a photograph showing three holes in a wall, which he asserts show that there had been previous drainage from more than one sink.  He asserts that he could have produced evidence to confirm that there were at least two sinks in the store room.  I consider that the fact that no such evidence was called is at least partly attributable to the lack of particularity in the information.

[21]     I consider that these somewhat unsatisfactory aspects of the prosecution case, and  the  limited  extent  of  Mr Teki’s  evidence  at  the  hearing,  may  well  be  a consequence of the lack of particularity in the charge, and a consequent lack of focus on exactly what work was alleged to infringe the notice.  I consider that Mr Teki has been prejudiced by the lack of particularity in the information, to the extent that his conviction cannot stand.  The appeal must accordingly be allowed.  I do not, in the circumstances,   consider   it   appropriate   to   direct   a   rehearing.      A   properly particularised information would now be well outside the limitation period.

[22]     That conclusion makes it unnecessary to address the remaining grounds of appeal.

Result

[23]     The appeal is allowed and the conviction is set aside.

Solicitors:           Armstrong Barton Lawyers, Wanganui, for Respondent

“A D MacKenzie J”