The Queen v Conway

[2009] NZCA 66

IN THE COURT OF APPEAL OF NEW ZEALAND

CA388/2008
[2009] NZCA 66

THE QUEEN

v

WILLIAM VECTOR GEORGE CONWAY

Hearing:4 March 2009

Court:Arnold, Ronald Young and Venning JJ

Counsel:R J E Brown for Appellant

N P Chisnall for Crown

Judgment:10 March 2009 at 3 pm 

JUDGMENT OF THE COURT

The application for extension of time to appeal is refused.

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       On 17 November 2003 the appellant pleaded guilty to nine counts of offences under the Resource Management Act 1991.

[2]       Cash for Scrap Limited and Independent Holdings Limited owned and operated a scrap metal yard at 11 Bairds Road, Otara (the site) from at least early 2001.  The appellant was the manager and his partner a director.  The indictment alleged that in 2001 the appellant and employees of the companies discharged contaminants such as engine oil, transmission fluids, hydraulic oil, and radiator glycols onto the ground which may have entered water at Bairds Road without authority from the regional authority or being authorised by a plan or regulations (counts 1, 3 and 5).

[3]       As a result of this contamination, Cash for Scrap Limited and the appellant were served with abatement notices by the Auckland Regional Authority (ARC).  The indictment alleged the appellant failed to comply with these notices (counts 7 and 9).  Interim and final enforcement orders relating to the site and its contamination were made by the Environment Court.  The indictment alleged these enforcement orders were not wholly complied with by the appellant and the company (counts 11 and 12).   The Environment Court made orders that the scrap metal business was not to continue on the site and was to be cleared of existing contamination.  The indictment alleged the appellant breached these orders (counts 13 and 14).

[4]       The appellant, by notice of appeal filed on 8 July 2008 seeks an extension of time to file a notice of appeal (s 388(2) of the Crimes Act 1961).  The appellant’s case is that there is “new cogent” evidence that the site was not contaminated as the ARC alleged, that the appellant pleaded guilty to save his partner from prosecution and if there was contamination it was caused by others.

[5]       The “new cogent” evidence is said to be contained in a report by Pattle Delamore Partners Limited, environmental scientists, completed on 12 February 2007 (the Pattle Delamore report), relating to contamination at the site.

[6]       The appellant must satisfy this Court that the merits of this new “evidence” are such that it is in the interests of justice that an extension of time be granted for the filing of the appeal.  Further, this Court may take into account in assessing the interests of justice any explanation for the delay in filing the application.  Given the appellant’s guilty pleas, the circumstances of the entry of those pleas will also be relevant to the interests of justice.

Merits of appeal

[7]       The basis of the appellant’s claim that there is new and cogent evidence that no pollution occurred at the site is based on the Pattle Delamore report.  Pattle Delamore undertook sampling at the site in late 2006 and sent the samples to Hill Laboratories who undertook the analysis.  The sampling and subsequent testing were performed on the instructions of Cash for Scrap Limited as part of a proposal by them to sell the property at Bairds Road.

[8]       As to the site, the report said:

11Bairds Road

Soil samples collected from 11 Bairds Road, the primary site of Cash for Scrap operations, showed a wider spread of elevated levels of metals than samples from 13 Bairds Road.  The majority of samples with elevated levels of metals were found to exceed the ARC adopted guidelines for chromium, nickel, lead and zinc and were collected from test pits located on the southern and western section of the 11 Bairds Road property, surrounding the former Cash for Scrap workshop.  Other metals such as arsenic, cadmium and copper were found to be at concentrations below the ARC adopted guidelines.  Similar to 13 Bairds Road, all samples were below the Australian NEPC (1999) Health Investigation Level guidelines for metals.

In terms of hydrocarbons, the samples tested for TPH, PAHs and BTEX showed concentrations not exceeding applicable guidelines for human health.  Some detection of PCBs was made, with 1 of the 3 samples exceeding a USEPA guideline but passing the NEPC guideline.

[9]       The report identified limitations as follows:

10.0Limitations

This letter report has been prepared on the basis of visual observations during the inspection of the site vicinity, the results of test pit excavation, the analytical results from the testing of soil samples, and a review of information regarding the site history.  This information has been used to assess the environment conditions of the site.  The conditions cannot be guaranteed.

The laboratory test results provide an approximation of the concentrations of the hydrocarbons, metals, and polychlorinated biphenyls in the sampled soils according to the limitations of the test methods.  The results provide a screening of the chemical present and should not be considered to be an accurate measure of the exact chemical concentration.

The information contained within this report applies to the sampling date (December 2006).  With time, the site conditions or the environmental guidelines that have been used could change so that the reported assessment and conclusions are no longer valid.  Thus, in the future, the report should not be used without confirming the validity of the report’s information at that time.

The report has been prepared for Cash for Scrap Limited according to their instructions for the particular objectives described in this report.  The information should not be used by anyone else or for any other purpose.

[10]     This report does not, as the appellant claims, contain new, cogent and compelling evidence that “no pollution occurred at 11 Bairds Road”.

[11]     The report is expressly limited to the situation as at the sampling date of December 2006.  This is four to five years after the events which gave rise to the prosecution.  The report, therefore, says nothing about the pollution levels in the property in 2001.  Secondly, in any event, the report found elevated levels of some minerals at the site.

[12]     Thirdly, the charges by themselves did not require the ARC to “prove” any particular level of “pollution”.  A majority of the charges involved failure to comply with abatement orders and enforcement orders.  That failure has not been challenged in these proceedings.  Those charges directly concerned with polluting land (counts 1, 3 and 5) allege only that the appellant had discharged contaminants onto land, which may have resulted in the contaminants entering water without authority from the ARC or being authorised by a plan or regulation.

[13]     The other “evidence” from the appellant said to be relevant to the application for extension of time is from an affidavit by a Mr Johnothan Taylor sworn on 27 October 2002.  Mr Taylor in that affidavit says that he was involved in an episode of vandalism at the site in 2001 when he said “oil was spilled into the adjoining creek”.  No further detail of the incident is given other than to say it occurred sometime in 2001.  The affidavit was sworn on 27 October 2002 well before the appellant had pleaded guilty and was sentenced.  If the appellant believed that this evidence explained the pollution of the site then he had ample opportunity prior to his plea and prior to sentencing to raise that matter.

[14]     We do not consider that the Pattle Delamore report or Mr Taylor’s affidavit provide any possible defence to the charges the appellant pleaded guilty to.  The first three counts to which the appellant pleaded guilty alleged discharge of contaminants onto land which may have resulted in contaminants entering water.  The summary of facts details the observations of officers of the ARC and other witnesses who saw large volumes of engine oil, transmission fluids, hydraulic oil and radiator glycols being discharged onto the ground, into stormwater drains and into a stream which bordered the site.  This evidence was fundamental to the contamination charges and has not been challenged by the appellant.  In addition some soil sampling was carried out in 2001 which showed soil contamination.

[15]     The remaining counts to which the appellant pleaded guilty are failing to comply with abatement notices and contravention of enforcement orders. These counts essentially involved failures to clean up the site, to stop the spread of contaminants and reinstate the site.  Once again, the primary evidence relied upon by the prosecution were the observations of the ARC officers together with representatives of environmental firms (including Pattle Delamore Partners) which has not been challenged by the appellant.

Delay

[16]     There is little explanation from the appellant for the delay from conviction to the filing of this application.  The appellant’s case is that he was not aware that the ARC’s evidence about site contamination could be challenged until he obtained the Pattle Delamore report in February 2007.  If there had been any doubt about the ARC’s soil survey evidence the appellant could have commissioned an independent report then.  In any event there is no explanation for the delay in filing this appeal from the receipt of the Pattle Delamore report (February 2007) to the filing of the appeal in July 2008, other than difficulties with an application for legal aid.

Guilty pleas

[17]     This Court must be satisfied a miscarriage of justice has occurred before it will allow an appeal against conviction where guilty pleas have been entered (R vLe Page [2005] 2 NZLR 845 (CA) at paragraph [16], applying Rv Stretch [1982] 1 NZLR 225 (CA) and Rv Ripia [1985] 1 NZLR 122 (CA)). The appellant was represented by very experienced counsel when he entered his guilty pleas. The summary of facts presented to the Judge at sentencing had been significantly amended from the original summary to favour the appellant. While we accept a factor in the appellant’s guilty plea was his partner’s illness and his desire to protect her, he could hardly have been in doubt about what he was admitting to when he pleaded guilty. He knew from the summary of facts that the ARC had observed extensive contamination of the site and had done testing on the site. There is nothing to suggest the appellant’s guilty pleas were somehow made in circumstances that a miscarriage of justice occurred.

[18]     The proposed appeal has no merit, there is no adequate explanation for the delay in filing the appeal, and the appellant pleaded guilty after negotiating an amended summary of facts and after legal advice.  Given those factors we consider this is not an appropriate case for an extension of time for filing an appeal.

[19]     The application is, therefore, refused.

Solicitors:

Crown Law Office, Wellington