In order to establish that an offence has been committed, it is important to understand exactly what must be proved. The usual starting point is to look at how the offence is defined in the RMA, and determine each part of the definition that must be proved. This approach is commonly referred to as elements or ingredients of the offence.
For example, s338 of the RMA states:
(3) Every person commits an offence against this Act who -
(a) Wilfully obstructs, hinders, resists, or deceives any person in the execution of any powers conferred on that person by or under this Act:
The elements of this offence are:
- a person
- obstructs, hinders, resists, or deceives any person
- in the execution of any powers conferred on that person by or under the RMA.
Knowing the elements of an offence helps direct inquiries toward the issues that will be most relevant. This will ensure proof is appropriately aligned with what is required for prosecutions or the issuing of infringement notices. Relating the evidence you collect to the elements of the offence is known as ‘fact analysis’.
Fact analysis is a technique that helps investigating officers and lawyers understand the evidence they require to prove an offence. Fact analysis helps:
- understand all the elements that need to be proven and avoid possible failure of proceedings from lack of evidence
- plan and track investigation progress: the material facts for which there is evidence, and what gaps remain.
Initially, fact analysis may consist of a mental check of aspects related to compliance when an officer first arrives on the scene of an incident. Done correctly it can enable the officer to quickly identify the type of evidence detectable at the scene, and identify any gaps in the evidence that will need to be filled later on.
Fact analysis skills are important for all compliance officers, whether Police, Department of Labour inspectors, or council staff. The skills need to be used consistently and are particularly crucial when determining whether to prosecute or issue an infringement notice on the spot.
Carrying out fact analysis and identifying evidence
Before arriving at the scene of a potential offence, officers will have framed some initial thoughts, or a tentative theory, as to what may have occurred. From these thoughts or theories the officer may then decide which (if any) offence best fits the case. The next step is to test for proof of the offence. The following method could be used:
1: Identifying elements of the offence
- Write out the full description of the offence, including the relevant provision in s338 of the RMA, along with any related national environmental standard, plan rule, resource consent condition, abatement notice, or enforcement order that has been breached.
- Separate out each element of the offence. An element is any part of the offence description that requires its own evidence. Avoid any assumption that proof of one element is automatically proof of another, by breaking the elements down to their smallest factual units. Omitting proof of any element may result in failure. For example, "girth of tree measured at 1.4 metres above ground level" contains at least three factual elements:
- girth of the tree
- establishment of ground level
- measurement at 1.4 metres.
Each of these elements must be separately confirmed.
- If there are any exceptions set out in the RMA provision which establishes the offence (or the related national environmental standard, plan rule, resource consent condition, abatement notice, or enforcement order) be careful to consider and record whether each of them applies.
- Consider any statutory defences and test whether any will be applicable. Check and record whether a resource consent or use rights exist that cover the apparent breach.
- It is usual for an 'information' (the charges laid to commence summary proceedings) to contain the date and place the alleged offence took place, so these should be recorded even if they are not an element of the offence. The date is also relevant to the timing for laying the charges given the six-month deadline under s338(4) of the RMA.
2: Identifying the material facts
- Ask "which verifiable facts would prove each element of the offence?"
- Write those facts alongside each related element.
Defences under the RMA can also be said to have elements. Knowing these defences can avoid wasting precious time. When interviewing the alleged offender, having this background knowledge will allow you to focus in on the relevant parts of their explanation.
- Consider which verifiable facts would demonstrate a possible statutory defence in relation to the offence.
3: Identifying relevant evidence
The primary principle for determining whether evidence is admissible is its relevance: evidence must tend to prove or disprove an important matter for determination in the proceedings. If the evidence you propose to submit to Court directly establishes a material fact, it is likely to be relevant.
Evidence may also be admissible if, together with other evidence, it creates an inference of a material fact. An example of evidence requiring an inference to be drawn would be the equipment found lying by a destroyed tree (protected under a district plan) soon after it was removed, with sawdust in its cutting mechanism. An inference about who destroyed the tree might be supported by other evidence as to ownership of that equipment.
The good practice examples section of this guidance note provides an example of a short form table for fact analysis.