Investigation of incidents
It is important that incidents are investigated thoroughly and the correct procedures followed. If mistakes are made and/or the correct procedures are not followed, any enforcement action taken may fail.
Warrants of appointment
Section 38
Section 38(1) of the RMA provides that a local authority may authorise any of its officers or any officers of any other local authority, or of the Ministry of Agriculture and Fisheries, or of the Department of Conservation, or of the Maritime Safety Authority of New Zealand, to carry out all or any of the functions and powers as an enforcement officer under the Act.
Under s 38(6) every enforcement officer who exercises any power under the Act must produce, if required to do so, his/her warrant and evidence of his/her identity.
Surrender of warrant
On termination of appointment, the enforcement officer should surrender his/her warrant to the local authority.
Expiry dates
Some local authorities issue warrant cards with an expiry date. We suggest that warrant cards not have an expiry date, to avoid the need to have procedures in place to ensure that warrant cards are current.
There have been instances of a regional council whose enforcement officers produced expired warrants when investigating an incident. The Council prosecuted. At the hearing, which was about 12 months later, the defendant’s lawyer asked Council staff in cross-examination to produce their warrant cards. The warrant cards had not been updated. The Judge expressed dismay; fortunately this did not affect the Council’s case.
Power of entry for inspection
Section 332
Pursuant to s 332 of the Act, any enforcement officer, specifically authorised in writing by any local authority or consent authority to do so, may at all reasonable times go on, into, under or over any place or structure, except a dwelling house, for the purpose of inspection to determine whether the RMA or an enforcement order, abatement notice etc. is being complied with. It is important for the warrant to state that the enforcement officer is authorised to act pursuant to s 332.
The extent of an enforcement officer's powers under s 332 (and the relationship between sections 332 and 334) has been clarified by decisions of the Environment Court and the High Court on a declaration sought by the Waikato Regional Council.
Case example A
An Application by Waikato Regional Council [2003] NZRMA 17.
The Waikato Regional Council sought declarations relating to the power to enter (see chapter 10 – Application for a declaration).
The Court discussed an enforcement officer's implied licence to enter private property. It noted that s 332 only needs to be relied on when there is no invitation to enter and when no-one is present on site. The Court decided that force could be used if reasonably necessary to enter onto private property otherwise the ability to carry out inspections for the purpose of ensuring compliance would be hindered.
The words "specifically authorised" in s 332(1) are a reference to the enforcement officer's powers. The Court found that an enforcement officer authorised to act under s 332 does not need written authorisation specifying the time, place or assistance required for an inspection.
The Court also determined that s 332 does not authorise use of force to enter when there are reasonable grounds to believe that evidence of an offence against s 338(1) will only be collected if an inspection is undertaken immediately. Section 332 only authorises inspections where there is no belief that an offence has been committed. If there are reasonable grounds to believe there is an offence punishable by imprisonment, s 334 should be used.
The remainder of the points from the case are covered below under Assistance, and Visual observations, photographs, sketches and measurements.
Note that the New Zealand Pork Industry Board was concerned at the risk of infection or disease from the exercise of a power of entry. The Court pointed out that an enforcement officer is required to comply with statutory requirements, such as the Health and Safety in Employment Act 1992, which may apply. Enforcement officers are also required under the general law to act with reasonable care having regard to the circumstances.
Time of entry
Section 332(1) provides that entry is to be at all reasonable times (ie, not late at night), unless there is justification.
Case example B
Auckland Regional Council v Graham
The enforcement officer entered a pig farm in the early hours of the morning to investigate a complaint that the defendant had been spray-irrigating pig waste onto her property at night. The defendant conducted her own defence and complained about the time of the inspection. The Judge considered s 332 and found that the time of the inspection was reasonable because the enforcement officer was legitimately investigating an alleged unlawful discharge at night.
31/03/95, Judge Skelton, DC Auckland CRN 4090020525/0527.
Samples
Section 332(2) provides that the enforcement officer may take samples of water, air, soil or organic matter, and under s 332(2A) may also take a sample of any substance that the enforcement officer has reasonable cause to suspect is a contaminant of any water, air, soil or organic matter.
Assistance
Section 332(6) provides that any enforcement officer exercising any power under s 332 may use such assistance as is "reasonably necessary".
In An Application by Waikato Regional Council the Court was asked to make a declaration on the assistance that enforcement officers can call on. The Court considered the ordinary meanings of the words in subsection (6) and the definition of "reasonably necessary". The Court found that an enforcement officer may, when it is reasonably necessary, employ the aid of non-warranted officers of the Council or experts, police officers, vehicles and specialised equipment (and specialised or licensed operators) needed for the inspection and taking of samples. Given the different situations that could arise, the Court declined to make a declaration in the terms sought.
The Council appealed to the High Court. The High Court in Waikato Regional Council v Wellington City Council ( HC Auckland AP18-SWO3) also refused to make the declaration sought and remitted the case back to the Environment Court. The appellant also appealed findings made by the Environment Court about the function and purpose of s 332.
The High Court noted that s 332 specifically authorises inspections to determine compliance, whereas s 334 is used for a visit to obtain evidence for the prosecution of an offence. The purpose of the visit at the time of entry is the determining factor. The High Court went on to say that if an inspection were carried out as a follow-up to a complaint, the evidence would prima facie be admissible if the Council later decided to prosecute.
Procedure for production of warrant
The first step the enforcement officer must take upon entering the property is to make an attempt to find the owner or occupier. If the owner or occupier is present, the enforcement officer must produce his/her warrant. If the owner/occupier later asks to see the warrant again, the warrant should be shown.
If more than one enforcement officer inspects, each officer must provide his/her warrant. It is not sufficient for only one of the enforcement officers to do so.
If the enforcement officer suspects the person at the property is not the owner or occupier (see section 2 of the RMA for definitions) the warrant should still be produced. In Case Example 2c, Auckland Regional Council v Nuplex Industries, the defendant unsuccessfully argued that the evidence obtained by the enforcement officer was inadmissible because the officer failed to produce her warrant when she inspected. In Nuplex the enforcement officer was accompanied by staff members of Nuplex and a condition of the resource consent specifically allowed Council staff to inspect and to collect samples. Our view is that an enforcement officer should produce his/her warrant whenever private property is entered. This will avoid any argument that the evidence collected is inadmissible.
Notice of inspection
If the owner/occupier is not present, a written notice showing the date and time of the inspection and the name of each enforcement officer who inspected should be left in a prominent position at the place, or attached to the structure inspected. We suggest that you take a photograph of the notice as evidence of compliance with s 332(4) and, in addition to leaving written notice at the site, send a letter to the owner/occupier notifying them of the visit.
In Case Example 2d below, Marlborough District Council v Searle, the defendant argued that the enforcement officers’ entry upon the land was illegal because the enforcement officers had not complied with s 332(4). The Court rejected this argument and held that the evidence could have been obtained without entering the property. Our view is that if the owner/occupier is not present, s 332(4) should always be complied with to avoid any argument that the evidence collected is inadmissible.
Obstruction
If the owner/occupier is obstructive, the enforcement officer should leave the property and arrange for a police officer to accompany the enforcement officer back onto the property.
Wilful obstruction of any person executing any powers conferred by the RMA is an offence against s 338(3). The maximum penalty is $1,500.
Warrant for entry for search
Under s 334, application can be made for a warrant for entry to search where there are reasonable grounds for believing an offence has been committed that is punishable by imprisonment. As noted above by the High Court in Waikato Regional Council v Wellington City Council, if the purpose of the visit is to obtain evidence to support the prosecution of an imprisonable offence, s 334 applies and a warrant is required.
Section 335 provides that the warrant is to be executed by either a constable or an enforcement officer accompanied by a constable. In Auckland Regional Council v Horticultural Processors Ltd ( 23/11/93, Judge Kenderdine, DC Henderson CRN 2090016530), the Auckland Regional Council obtained search warrants to search the premises of Horticultural Processors Ltd to obtain evidence to confirm the source of the material that was discharged. See Case Example 1e for another example of an application for a warrant.
Case example C
Auckland Regional Council v Nuplex Industries Ltd
The Auckland Regional Council prosecuted Nuplex for breach of s 15(1)(c) of the RMA, discharge of contaminants into air, from the Nuplex factory at Penrose at which Nuplex manufactures synthetic resins and emulsions.
The defendant objected to the admissibility of evidence obtained by the Council enforcement officer and argued that it was obtained unlawfully and should be held inadmissible on two grounds:
(i) s 21 of the New Zealand Bill of Rights Act 1990
(ii) the common law rule [see glossary], which applies to unlawfully obtained evidence.
The enforcement officer had visited the premises on 21 occasions over a two-year period. A number of the defendant’s staff knew that she was an air quality enforcement officer for the Council. The enforcement officer obtained samples and information on each visit. The enforcement officer could not recall producing her warrant on any of her visits and said that it was not her usual practice to show her warrant unless she was asked to do so. On each visit the enforcement officer filled in a visitors’ book and she was accompanied by one or more of the defendant’s staff.
The enforcement officer wrote to Nuplex after her first visit and pointed out that non-compliance with the resource consent is contrary to the RMA and that penalties ranged up to a maximum of two years’ imprisonment or a fine of up to $200,000. Condition 1 of the resource consent provided:
That this resource consent is granted by the Auckland Regional Council, subject to its servants or agents being permitted access to the relevant parts of the property at all reasonable times for the purpose of carrying out inspections, surveys, investigations, tests, measurements or taking samples.
The defendant’s lawyer argued that the evidence obtained by the enforcement officer was obtained unlawfully. He argued that the officer was exercising her powers of entry under s 332 and was therefore legally required, whether or not she was asked, to produce her warrant.
Environment Judge Whiting held that the word “required” in subsection (6) of s 38 means that an enforcement officer has to produce his or her warrant if asked. The Judge also held that if he was wrong in his interpretation of s 38 any technical unlawfulness was cured by the consent of the defendant: first through its staff, who were aware the enforcement officer was making enquiries and investigations about the alleged non-compliance of the resource consent, and secondly, by the terms of condition 1 of the resource consent.
Judge Whiting found that the enforcement officer’s actions were reasonable and held that the evidence obtained by the enforcement officer was admissible.
2/07/98, Judge Whiting, DC Auckland CRN 7004021704-707.
Case study D
Marlborough District Council v Searle
The Marlborough District Council prosecuted Searle for breach of s 9(3) of the RMA for excavation of Class VI (e) land within 8 metres of the sea, being a use of land contravening a rule in the regional plan. The charge was dismissed because the Council failed to establish that the land was Class VI (e) land.
One of the arguments raised by the defendant was that the enforcement officers’ entry upon the land was illegal because there was no-one present when the enforcement officers inspected and the enforcement officers did not leave written notice of the date and time of inspection.
Environment Judge Treadwell held:
Officers of Council must be extremely careful in carrying out the requirements of s 332 but in the present case I do not hold that has invalidated in any way the evidence I heard because the evidence of the cutting of the track could have been given without entry upon land namely by standing on the foreshore or sitting in a boat and observing it.
13/06/96, Judge Treadwell, DC Blenheim CRN 6006004645.
Evidence
This section includes information from a paper written by Stuart Ryan of Cooney Lees & Morgan, Tauranga, for Environment Bay of Plenty.
Standard of proof
There are two different standards of proof.
The standard of proof for a prosecution and for an infringement offence is “beyond reasonable doubt”. A reasonable doubt is a doubt that would prevent a reasonable and just Judge or jury from coming to a conclusion.
What is a real and substantial doubt? It is only another way of saying a reasonable doubt, and “reasonable doubt” is simply that degree of doubt which would prevent a reasonable and just man from coming to a conclusion. Bater v Bater [1950] 2 All ER 458 (CA) at 459, per Denning LJ.
I have never yet heard any court give a real definition of what is a “reasonable doubt”, and it would be very much better if that expression was not used. Whenever a court attempts to explain what is meant by it, the explanation tends to result in confusion rather than clarity. It is far better, instead of using the words “reasonable doubt” and then trying to say what is a reasonable doubt, to say to a jury: “You must not convict unless you are satisfied by the evidence given by the prosecution that the offence has been committed.” The jury should be told that it is not for the prisoner to prove his innocence, but for the prosecution to prove his guilt. R v Summers [1952] 1 All ER 1059 at 1060.
The standard of proof for an:
is “on the balance of probabilities”. This means that once both sides have presented their evidence, the Judge will find for the party who on the whole has a stronger case.
When a site inspection is carried out and evidence is collected, the enforcement officer will not know if enforcement action will be taken and, if action is taken, what type of action will be taken and therefore what standard of proof is required. Evidence of the highest possible standard should be collected at all times.
Elements of the offence
If the local authority prosecutes, it must prove the elements of the offence by evidence that is admissible [see glossary] in Court, covering:
Correct procedures
Evidence that is collected properly and is comprehensive increases the chances of successful enforcement action. Take care with the production of warrants, and the collection of samples and photographs. Correct procedures must be followed at all times. The correct procedures are outlined in the following paragraphs.
Chain of custody
The “chain of custody” refers to the passage of an exhibit, from where it was located until the time it is produced in Court as evidence (physical evidence such as samples, documents or photographs are referred to as “exhibits”). The chain of custody proves that an exhibit is, in fact, what it is alleged to be (ie, what is produced in Court is precisely what was originally found at the scene).
To help ensure proof of the chain pf custody, always follow these procedures.
Samples
Wherever possible, collect samples of the contaminant discharged and analyse the samples so that evidence can be given of the effect of the contaminant on the environment. Visual observation on its own may not be sufficient to prove the substance is a contaminant as defined in the RMA.
The purpose of sampling is to identify the contaminant discharged and its likely effect on air, soil or water quality. Hence the receiving environment should also be sampled upwind/above/upstream and downwind/below/ downstream of the point of discharge. If there are other possible sources of contamination (eg, two drain-pipes discharging into the same stream), samples should also be collected from these other sources to establish their effect on the receiving environment.
If samples are taken, the exact location of sampling should be recorded. Take a photo of the sample(s) and a photo of the sample site (refer Visual observations, photographs, sketches and measurements). Collect a sensible number of samples and, whenever possible, take extra samples. It is better to have a surplus rather than not enough. Extra samples will allow additional or repeat analysis.
If a sample is to be used as evidence it must be stored in a place where it cannot be tampered with. Some samples may require refrigeration. All evidence should be stored in a tamper-proof location (eg, in a locked fridge in a locked laboratory).
All samples collected should be contained in bottles or other containers supplied by the enforcement officer so that the officer can confirm the cleanliness of the containers used.
Samples should be analysed as soon as possible after being taken to avoid any legal attack on the validity of the analysis results. Every endeavour must be made to avoid the suggestion that the samples may have been contaminated or interfered with between collection and analysis. The method of sampling should be able to be scientifically verified (ie, it is an appropriate sampling technique for the substance being sampled). Use laboratories with registered quality assurance procedures. Make sure that the laboratory completes a chain of custody form to ensure the sample is not confused with another sample and is kept secure so there is no possibility of the sample being tampered with.
Points to watch
Northland Regional Council v Northland Port Corporation (NZ) Ltd and others
The Northland Regional Council prosecuted the Northland Port Corporation and others for the discharge of spent sandblasting sand and oil. Judge Bollard expressed astonishment that none of the three officers who collected the samples undertook responsibility for looking after the samples and making sure the whereabouts of the samples was known and the security reasonably assured from the time the samples were taken to the time the samples were uplifted from the refrigerator in the Council laboratory. The Judge described the evidence surrounding the samples as unpersuasive and, in some respects, substandard. As a result some of the charges were dismissed.
16/02/96, Judge Bollard, DC Whangarei CRN 5088011428-447, 527-28, 532-33.
Northland Regional Council v Juken Nissho Ltd
The Northland Regional Council prosecuted Juken Nissho for contravention of s 15(1)(c), discharge of contaminants into air in breach of Juken Nissho’s resource consent. One of the three charges against Juken Nissho was dismissed because the security of the samples could not be established beyond reasonable doubt. The MAF laboratory to which the Council had sent the samples for analysis had a chain of custody procedure in place but did not adopt the procedure for the Northland Regional Council samples.
18/09/98, Judge Bollard, DC Whangarei CRN 7029003709, 7029003874 and 7029004299.
Wellington Regional Council v O’Rourke and Cremen
O’Rourke and Cremen pleaded not guilty to a breach of s 15(1)(b) – discharge of septic tank sludge and grease trap waste. No evidence was given by the Council to establish that the sample collected was the sample analysed. This had been overlooked. The charges were dismissed.
5/11/93, Judge Skelton, DC Masterton CRN 3035007074-76.
Visual observations, photographs, sketches and measurements
Detailed visual observation is very important in prosecutions. Photos should always be taken. In Case Example 1e, the Waitakere City Council applied for a warrant under s 334 to take photos. The practice of local authority enforcement officers is to take photos without first obtaining a warrant under s 334, and in most cases the owner/occupier does not object to photos being taken.
Section 332 does not specifically allow enforcement officers to take photos. It is therefore arguable that photos cannot be taken if the owner/occupier objects, and a warrant under s 334 would have to be obtained. The difficulty with this is that evidence of breach of the Act may have “disappeared” by the time the warrant has been issued.
In Case Example 1f, Application by Waikato Regional Council, the Environment Court Judge considered the Waitakere City Council case, and stated that photos are an aid for recalling what the officer has seen and are part and parcel of recording an inspection.
Use a camera that records the date on the photo. A camera that takes panoramic views can be very useful rather than having to match and stick several photos together when a landscape view is required. An aerial photo is often very useful for illustrating an overview of the situation. Again, the date the aerial photo was taken is required.
In many cases a sketch will be helpful (eg, identifying sample collection points, waterways and the source of the discharge or the extent of an excavation). Ensure that a ruler or tape is available to take measurements. (Refer Technical instruments for discussion of the use of other technical instruments.)
Case example E
Waitakere City Council v Gordon
The Waitakere City Council applied for a warrant under s 334 of the RMA to authorise a Council enforcement officer to take photos.
The enforcement officer had inspected Mr Gordon’s property and had found that recent earthworks had been undertaken and that there were cars and car bodies on the property in contravention of the Council plan. Mr Gordon refused to allow the enforcement officer to take photos.
District Court Judge Mather granted the application and issued a warrant which authorised the enforcement officer to take photos. Judge Mather suggested in his decision that it will “always be a wise precaution for the applicant to seek explicit authority to take photos or use electronic devices generally if that is proposed”.
[2003] NZRMA17
Case example F
An Application by Waikato Regional Council
Declarations were sought relating to whether s 332 confers a right to take photos, film a video, take measurements and make sketches.
The Court decided that photos are a record of the inspection and similar to written notes. Photos can and should be taken as a record of evidence.
The declarations were made. This issue was not discussed in the High Court decision.
[2003] NZRMA17
Technical instruments
Enforcement officers are likely to use a variety of technical instruments in collecting samples and in carrying out field measurements (refer Visual observations, photographs, sketches and measurements for discussion of the use of cameras). The admissibility of data generated by mechanical or computerised instruments is subject to the law of evidence. To be able to admit evidence collected by the use of an instrument it is necessary to show the following.
Avoid making assumptions
An investigation must identify the cause of the offence and eliminate any other potential causes, such as (in the case of a discharge offence) upstream users or surrounding properties. Avoid making early assumptions. For example, the fact that a discharge pipe is located on a particular property does not necessarily mean the occupier of that property is causing the offence. The pipe should be traced right back to its source, which may be the adjoining property.
File notes
File notes (records) are essential for the following reasons.
If notes are rewritten or typed, always keep the original hand-written notes. Appendices 1C and 1D are checklists which can be used when investigating an incident. However, generally file notes should cover:
Enforcement officers should type a record when they return to the office after investigating a complaint. This should give a general overview of the investigation and expand or clarify any “shorthand” in hand-written notes.
Disclosure of information
If the local authority prosecutes, file notes and other documents (other than correspondence and other communications between the local authority and its lawyer relating to the prosecution) must be disclosed to the defendant.
If the local authority takes enforcement action other than prosecution, and if the party against whom the action is taken makes a request under the Local Government Official Information and Meetings Act 1987, copies of documents on the local authority file will have to be provided unless there are reasons for withholding the information under sections 6 and 7 of the Local Government Official Information and Meetings Act.
Duty of disclosure
The duty of the prosecution to disclose information to the defence has been substantially changed by the provisions of the Official Information Act 1982: Commissioner of Police v Ombudsman [1988] 1 NZLR 385, also reported as Pearce v Thompson (1988) 3 CRNZ 268. The decision effectively places an obligation on the prosecution to supply to the accused copies of briefs of evidence, witnesses’ statements and interview notes on request. Such information is “personal information” within the Act, and the accused has a statutory right to request it: see also R v Tamihere (No 2) (1990) 6 CRNZ 653. Where written briefs of evidence are not in existence, the Act does not require the prosecutor to furnish them, or to supply details of the evidence.
R (a police officer) v Harvey [1991] 1 NZLR 242.
The interview
It is crucial in collecting information for a prosecution to seek an explanation from the offending person and all relevant witnesses. A written record of the conversation should be made at the time or immediately after the conversation. Whenever possible it is useful to have another enforcement officer present when investigating an incident.
The only information the person interviewed is required to give an enforcement officer is (s 22 of the Act):
In practice, the majority of people interviewed give enforcement officers a lot of information.
The following techniques can be used by enforcement officers to conduct effective interviews.
Good practice tips
Planning the interview
- Organise your thoughts and establish what questions will be asked and a general sequence for questioning.
Opening the interview
Conducting the interview
Closing the interview
Summarise your understanding of the key points discussed to ensure accuracy.
Can an enforcement officer arrest or detain a person for questioning?
In Auckland Regional Council v Horticultural Processors Ltd (1993 DC Henderson CRN 2090016530, 31, 33, 36) Judge Kenderdine considered the applicability of the New Zealand Bill of Rights Act 1990 and held that as there is no power for an enforcement officer to detain a person for questioning under the RMA, there is no requirement for the enforcement officer to warn of the consequences of making a statement (at page 29): “This is not a police interrogation so there is not a requirement for caution or application of Judges’ Rules”.
Which is to say the Judges’ rules are not applicable to local authority enforcement officers. The Judges’ Rules were rules issued in 1912 and 1918 by the English Judges as guides to police officers. The rules were formulated to provide the police with the proper course they should follow in conducting interviews.
Enforcement officers cannot arrest or detain anyone, and enforcement officers should be careful not to give the impression they have powers to detain the person being interviewed. The enforcement officer should not intimidate the person being interviewed. If the person being interviewed makes an admission (admits breaching the RMA), the enforcement officer should explain that an admission has been made and that the local authority will refer to the admission if it takes enforcement action.
Environment Judge Treadwell delivered a very helpful paper entitled Brief Comments on Evidence Needed for Prosecutions at the 1998 Resource Consent Compliance Monitoring Seminar held in Blenheim. Judge Treadwell made the following comment on confessions/admissions.
The admission or confession situation has not to my knowledge yet been tested probably because the lawyers conducting a prosecution are well aware of that rule of evidence and will not rely upon improperly taken admissions or confessions when mounting a prosecution.
Any such confession or admission must be made voluntarily and in particular must not be elicited by threats of action which might put the potential defendant in a position where he thinks if he confesses no further action will follow. I have seen letters produced to me in the course of prosecutions where a council officer has written to a prospective defendant stating that the council has decided that the situation warrants prosecution and that an information will issue unless an explanation satisfactory to council is forthcoming within a specified number of days. That type of letter is extremely dangerous as it does in fact elicit the response it seeks.
The reason it is dangerous is that one of the rules relating to evidence essentially says that when an officer or authority has made up his, her or its mind to charge somebody that person must be cautioned before any further questions are addressed to that person. You see it often in television, namely a warning that you are not obliged to answer any further questions but if you do the answers may be taken down and used in evidence against you. If a letter is couched in the terms I have just expressed then in my opinion, the letter should also contain that caution.
New Zealand Bill of Rights Act 1990, sections 23 and 24
23. Rights of persons arrested or detained–
(1) Everyone who is arrested or who is detained under any enactment–
(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.
(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
(4) Everyone who is–
(a) Arrested; or
(b) Detained under any enactment–
for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
24. Rights of persons charged–
Everyone who is charged with an offence–
(a) Shall be informed promptly and in detail of the nature and cause of the charge; and
(b) Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and
(c) Shall have the right to consult and instruct a lawyer; and
(d) Shall have the right to adequate time and facilities to prepare a defence; and
(e) Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months; and
The authors agree with Judge Treadwell. Once a local authority has made a decision to prosecute, the person being prosecuted must be cautioned before any further questions are addressed to that person.
Action required
In the event of a spill, the officer should be aware of the following objectives:
(a) to stop the spill or event at source (containment)
(b) to mitigate effects and clean up
(c) to collect evidence for possible enforcement action.
Each situation will differ, but the enforcement officer’s role is not to undertake (a) and (b) but to ensure that the offender is taking appropriate action. If it is established that the offender is completely incapable of undertaking suitable action to stop a spill and/or clean up the effect, local authority staff may need to take control (see chapter 8, Points to Watch, Otago Regional Council v Meadow Fresh Foods [Otago] Ltd ).
Points to watch
Auckland Regional Council v Horticultural Processors Ltd and Others
In Auckland Regional Council v Horticultural Processors Ltd and others, the Council prosecuted Horticultural Processors Ltd and others for the discharge of approximately 560 tonnes of kiwifruit pulp/waste. The defendants pleaded not guilty.
The charges against one of the defendants were proved, another defendant was discharged without conviction, and the charges against the remaining three defendants were dismissed. One of the defendants, Smith, applied for costs. The Auckland Regional Council was ordered to pay costs of $4,000 to Smith.
Judge Kenderdine expressed concern that the Council had deliberately allowed the discharge to continue for at least five days after it was brought to its attention, to allow the Council to collect evidence against Horticultural Processors Ltd. Judge Kenderdine took this factor into account when assessing the costs to be awarded against the Council.
At page 10 of the costs decision Judge Kenderdine stated:
I have grave concern that he [Mr Smith] is now bearing the costs of a criminal prosecution from a council concerned about the toxic effects of the discharge which they deliberately allowed to continue for at least five days after it was brought to their attention – merely in order to press home the charges to HPL. If the slurry was so dangerous it does not seem reasonable that the Council allowed it to be dumped for so long and then proceed to charge Mr Smith with an offence of strict liability.
23/11/93, Judge Kenderdine, DC Henderson CRN 2090016530.
See also the costs decision 6/10/94, Judge Kenderdine, DC Henderson CRN 2090016530 (no 2).
Publicising enforcement action
Prejudice to the defendant
Defendants prosecuted under the RMA for offences against s 338(1) have a right to elect trial by jury. A company prosecuted under the RMA has a right to elect trial by jury even though the company itself cannot be sentenced to imprisonment. If a local authority prosecutes and there is a media report about the prosecution, this could influence the jury and prejudice the right of the defendant to a fair trial. It may take some time for the defendant to make a decision as to whether or not to elect trial by jury.
We suggest that local authorities should not issue press releases on prosecutions other than with very general details of the case, and with no identification of the names of the defendants.
Note
The maximum term of imprisonment for an offence against s 338(1) is two years. Section 66 of the Summary Proceedings Act 1957 provides that the defendant has a right of election for offences which are punishable by imprisonment for a term exceeding three months.
Subjudice
“Subjudice” means that while a matter is under judicial consideration newspaper comment on the case is prohibited because the matter has not yet been decided by the Court and is still debatable. The media do, however, report about matters prior to the Court making a decision.
We suggest that when making press releases about any enforcement matters prior to a Court decision, local authorities should ensure that it is clear the local authority is taking enforcement action in respect of an alleged breach of the Act.
Case example G
Manawatu - Wanganui Regional Council v Lakeview Farm Fresh Ltd
The Manawatu - Wanganui Regional Council prosecuted Lakeview Farm Fresh Ltd for breach of s 15(1)(c) of the Act. The defendant sought an order dismissing the charges on the grounds that the media reports on the activities of the company had affected its rights under paras (a) and (c) of s 25 of the New Zealand Bill of Rights Act 1990:
25. Minimum standards of criminal procedure–
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
(b) …
(c) The right to be presumed innocent until proved guilty according to law.
It was accepted by the Council and the defendant that there had been a fair amount of publicity given to the activities of the defendant in respect of odours alleged to have emanated from its premises. Judge Treadwell noted that the Council:
… has been active in advising the public of steps it has taken with a view to remedying alleged odour nuisances. Occasionally an article has omitted the word “alleged” indicating that the defendant company is in fact the culprit. Many of the articles also assume that the alleged discharge is in fact offensive and objectionable... The local press has also pursued the defendant company with some enthusiasm as evidenced by headlines “Company Causes Stink” and “Freephone for Smell Complaints” followed by an article clearly associating smell with the defendant company.
Judge Treadwell found that there would not be a substantial risk that the fairness of the trial would be prejudiced because the defendant had elected trial by Judge alone. Judge Treadwell held that there is a difference between media material which may influence a potential jury and the situation where a case is to be dealt with by Judge alone.
The defendant also argued that the media reports would influence witnesses. Judge Treadwell held that:
Witnesses are called to give the Court their evidence on oath and I do not find that the views of the local press and or the Regional Council could necessarily lead such witnesses to effectively commit perjury or to have their views affected to such a degree that they would tell the Court that odour was offensive when they were previously of the opinion that it was not.
Judge Treadwell held that the Bill of Rights Act had not been breached, but restricted his comments to trial before Judge alone. Judge Treadwell warned local authorities to be careful about the information contained in press releases:
Whilst the actions of the informant may not in this case lead to an injustice I would observe that informants should not use the media to portray themselves as knights in armour guarding the public good. It is perfectly sufficient for them to indicate to the public that they are taking action in respect of alleged public nuisances but it is in my opinion not desirable nor is it the role of a public authority to make the type of press release which has been made in several instances in relation to the present matter where an official release clearly covers disputed factual matters which are more properly the prerogative of the Court.
26 17/05/00, Judge Treadwell, DC Levin CRN 9031005197-9031005205
Appendices
Appendix A: Chain of Custody Record (Word document 60KB)
Appendix B: Sample Lab Receipt Advice (Word document 26KB)
Appendix 1D: Checklist for Investigation of Incident – Breach of Section 9 RMA (Word document 94KB)
