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Investigation of incidents

Abstract

This guidance note is the first of seven guidance notes relating to enforcement and compliance under the Resource Management Act 1991 (RMA). The note covers matters related to the investigation of incidents, specifically:

Guidance note

Introduction

An investigation of an incident under the RMA is a systematic inquiry into an incident or allegation in order to establish the truth or verifiable facts. In relation to an offence, the aim is to establish what happened (including causes and effects of the incident), who did what, and why.

Many factors may be involved in an offence, especially in the causes that contribute to the offending action or omission, none of which can be ignored in an investigation. It is important that incidents are investigated thoroughly and the correct procedures followed. If mistakes are made or the correct procedures are not followed, the subsequent enforcement action may fail. As a result, the evidence from the investigation may be excluded during a prosecution.

The objectives of a good investigation include the following:

  1. assurance that an offence has or has not occurred (all tenable theories have been investigated and assessed, all reasonable inquiries undertaken)
  2. disclosing a persuasive case for a guilty plea (avoiding the unnecessary costs of a defended hearing)
  3. making good decisions to prosecute or otherwise
  4. efficiency: do it once, do it properly.

The Evidence Act 2006 (EA) is become the starting point for all questions about the admissibility of evidence. The existing common law remains but only to the extent that it is consist EA 's purpose and principles: s10(1)(c) of the EA. The common law will continue to be of importance in a number of areas, for example whether evidence is fairly and properly obtained.

The legal context for evidence

Proof and evidence

Offences under the RMA can result in criminal proceedings (prosecution) being taken under the law. The relevant court determines the facts of the proceedings based on the evidence before it, and whether facts justify the legal action taken or sought. The court may be a judge alone, or a jury.

The prosecuting authority has to prove that the defendant committed the offence (referred to the 'burden of proof ' principle, see Woolmington v DPP [1935] AC 462 (HL)). If there is reasonable doubt as to whether the evidence proves the defendant committed the offence, the 'burden of proof ' principle has not been met and the defendant may be acquitted.

Generally, the prosecuting authority must also prove that any defences raised by the defendant do not apply (unless the statute which prescribes the offence shifts that burden to the defendant. Defences under the RMA and Building Act 1991 (BA) may be upheld if the defendant proves the stated elements (s341 of the RMA, s388 of the BA).

The elements of an offence

In order to prove an offence has been committed beyond reasonable doubt, 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 which parts of the definition must be proved (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 the offence are:

Note that the last element will require further inquiry into the nature of the power executed.

Knowing the elements of an offence helps direct inquiries toward the issues that will be most relevant and ensure proof is appropriately aligned to that required for prosecutions or issuing of infringement notices. Matching the evidence you collect to the elements is known as fact analysis.

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:

  1. understand the elements that need to be proven and avoid possible failure of proceedings from lack of evidence
  2. 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 quickly categorise the type of evidence detectable at the scene while the officer is still present, and identify gaps in the evidence that still need to be filled.

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.

Carrying out fact analysis and identifying evidence

On first arriving or encountering 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 offence best fits the case (using the offences defined by s338 of the RMA and any relevant rule of a plan, regulation, abatement notice or consent condition for example). The next step for the officer is to test for proof of the offence. The following method could be used:

1: Identifying elements of the offence
2: Identifying the material facts

Defences under the RMA can also be said to have elements. Knowing these defences can avoid wasting precious time on an investigation for which a defence clearly exists. When interviewing the alleged offender, such knowledge allows you to turn your mind accurately to relevant parts of their explanation (for more information on offences refer to the Imposing Penalties Guidance Note).

3: Identifying relevant evidence

The primary principle of admissibility of evidence is relevance: evidence must tend to prove or disprove an important matter for determination of the prosecution proceedings. If the evidence you obtain and propose to submit to court directly represents a material fact, it is likely to be admissible for relevance. It may also be admissible if, together with other evidence, it creates an inference of a material fact.

An example of evidence requiring an inference, is equipment found lying by a destroyed tree (protected under a district plan) soon after the tree was removed, with sawdust in its cutting mechanism. The inference might be supported by admissions as to ownership of that equipment.

The best practice examples section of this guidance note provides an example of a short form table for fact analysis.

Evidence: an introduction

Evidence is the usual means of proving or disproving a fact, or matter at issue.

The most common method of giving evidence in a court situation is by oral testimony under oath or affirmation. Oral testimony works hand-in-hand with 'producing exhibits ', which means depositing physical or documentary evidence with the court ('document ' in the Evidence Act 2006 includes any material from which symbols, images or sounds can be derived, as well as information electronically recorded and stored). Oral testimony establishes the relevance and accuracy of the exhibit.

It may be helpful to think of evidence in three categories:

  1. Evidence about the identity of the offender. If your case fails, it is likely to be on these grounds. You can see what was done, but you cannot prove who did it or permitted it or which person is culpable as a principal under s340 of the RMA.
  2. Evidence about the act or action itself. Occasionally this is an issue for you, especially on technical matters or subjective matters.
  3. Evidence about intent to commit the act or action (not required in RMA: strict liability offences).

The fundamental principle: relevance

All relevant evidence is admissible, unless there is some policy reason to exclude it (s7 of the Evidence Act). The policy reasons can be summarised by reference to s6 of the EA. The admission of evidence should:

Relevant evidence is evidence that proves or disproves that an offence had been committed, by whom, or is important to any other determination that is the subject of proceedings. This extent of this tendency is known as its probative value. The probative value must outweigh any risk that the evidence will have an unfairly prejudicial effect on the proceeding - or needlessly prolong it (s8(1) of the Evidence Act).

Obligation of fairness

Every act by a public authority in regard to private citizens is governed by the principles of 'natural justice '. This means that the process or approach must be fair. There is no statutory formula for fairness, but relevant matters in an investigation would include:

The obligation continues past the laying of charges to disclosure of the prosecution case (which should be full and timely).

The attitude of the investigator is important. The investigator is an employee of an authority, but more importantly an officer of the public system of justice which has the interests of the community at its heart. It is not the role of an investigator to get convictions for offences, but to establish what actually happened; and if charges are laid, to assist the court in making a correct decision. Intuition may assist lines of inquiry, but personal beliefs should not close off alternative lines too early.

Improperly obtained evidence

The obligation to be fair in relation to the collection of evidence, is now legislated in s30 of the Evidence Act. A judge may exclude evidence obtained improperly or unfairly (s30(5)(c) of the EA).

The judge must make a decision about whether to exclude evidence if a defendant or the judge raises the issue of it being improperly obtained. The decision is made by weighing the impropriety against the "need for an effective and credible system of justice." In particular the judge may have regard to (s30(3)(a)-(h) of the Evidence Act):

  1. the importance of any right breached by the impropriety and the seriousness of the intrusion on it
  2. the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith
  3. the nature and quality of the improperly obtained evidence:
  4. the seriousness of the offence with which the defendant is charged
  5. whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used
  6. whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant
  7. whether the impropriety was necessary to avoid apprehended physical danger to the police or others
  8. whether there was any urgency in obtaining the improperly obtained evidence

Section 30 should remind investigators that they need to consider the different lines of inquiry available, if a potential offender 's rights and freedoms may be restricted by the approach taken. An example is the choice to take search warrants before attempting to interview suspects and determine their willingness to provide information, when urgent action is not critical to securing evidence which may be at the site.

Powers of investigation

The extent of an investigator 's authority

Generally, an investigator has the authority to investigate incidents within the scope of duties and responsibilities laid down by the authority 's empowering legislation. For example, investigators employed by a district council should not use their powers to obtain evidence for offences outside the jurisdiction of the district council.

An investigator has no more rights than the ordinary person in obtaining evidence, except if given specific powers to do so. An example of this is entry to private land.

Enforcement officer authorisation and warrants

Before a person can carry out all or any of the functions and powers of an enforcement officer under the RMA, he or she must be specifically authorised by a local authority under s38 of the RMA.

Once authorised, the local authority must provide enforcement officers with a warrant. The holder is obliged to carry the warrant when exercising any power, and to produce it together with evidence of identity (usually incorporated into the warrant card by way of photograph) if required to do so. An example is the requirement to produce the warrant when exercising the power to enter private land under s332 of the RMA.

The types of people a local authority may authorise to be an enforcement officer are:

Under s38(6) of the RMA every enforcement officer who exercises any power under the RMA must produce, if required to do so, his/her warrant and evidence of his/her identity.

Expiry of warrants

On termination of appointment, enforcement officers must surrender their warrant to the local authority.

Some local authorities issue warrant cards with an expiry date to avoid the unintended continuation of warrants after employees leave; however, this is not recommended as it requires procedures in place for ensuring that warrant cards are current. It is easier to bundle the surrender of warrants together with other requirements (eg, surrender of field equipment) at the end of the employment period.

Powers of entry

Privacy

The starting point for all powers of entry, inspection and search is the common law right to privacy. The law protects privacy. As an employee of a prosecuting authority, an enforcement officer has no greater right than a person off the street to invade privacy, unless the right is given to the officer by statute.

Ordinarily then, a person needs consent to enter private land or premises. Like any other person, enforcement officers can go to the front door or other public or customer entrance, and make reasonable inquiries to locate the owner or occupier; but if no one is home or if turned away, they must leave.

To be fair in carrying out an investigation, enforcement officers should explain who they are and the purpose of the visit so the occupier clearly has opportunity to ask them to leave.

Common issues

Questions commonly asked by enforcement officers about inspections include:

General power of local authority to enter land

Section 171 of the Local Government Act 2002 (LGA) provides a general power for a local authority to enter private land (though not a dwelling) to enable the local authority to perform its functions under the LGA. This is a general power available for all council inspections, but it need only be relied on when no other provision assists.

If entry is to determine compliance with a national environment standard, district or regional plan, resource consent, or abatement notice (among others), s332 of the RMA provides a power of entry without prior notice (but officers are still required to show their warrant on arrival and to leave a notice of inspection if no one is home). Officers ' warrants do not include entry to a house. To enter a dwelling house, an enforcement officer will require a search warrant. In such circumstances the general power under the LGA is not required and provides no advantage.

If there is an immediate need to enter private land, and it qualifies as an emergency situation under s330 of the RMA, s330(2) provides a power to the local authority to enter and do works, or direct the occupier to do works, to remove the cause or mitigate the effects of the emergency.

Power to inspect to determine compliance - s332

Under s332 of the RMA, any enforcement officer, specifically authorised in writing by any local authority to do so, may at all reasonable times go on, into, under or over any place or structure, including private property except a dwelling house, for the purpose of inspection to determine whether the RMA, an enforcement order, or an abatement notice, etc, is being complied with.

Note that compliance with the RMA includes compliance with the general duties in s16 and s17 about adverse effects and noise, regardless of whether a consent, rule or national environmental standard applies on the subject of the inspection.

Further inspections

The power under RMA s332 is to enter to determine compliance. Arguably this power is 'exhausted ' once an investigator has sufficient evidence to be reasonably satisfied of non-compliance by a person.

The High Court in Waikato Regional Council v Wellington City Council (HC Auckland AP18-SWO3) decided that if a local authority has made up its mind to prosecute, and the purpose is to gather further evidence for prosecution of an imprisonable offence, s332 cannot be relied upon and a search warrant is required (unless there is permission to enter).

The reasoning appears to centre on the protection of civil rights, to provide more scrutiny of the incursion into privacy, because for the owner or occupier, the potential outcome is very serious.

Time of entry

Section 332(1) provides that entry is to be at all reasonable times (eg, not late at night), unless there is justification. For a case law example, see Auckland Regional Council v Graham [1995] CRN 4090020525-527.

Taking samples

Section 332(2) of the RMA provides that the enforcement officer may take samples of water, air, soil or organic matter. Under s332(2A) the officer may also take a sample of any substance for which there is reasonable cause to be suspected of being a contaminant of any water, air, soil or organic matter.

Samples do not include documents. To take anything belonging to a person and not specifically authorised to be taken by inspection powers would amount to criminal conversion or theft.

Assistance

Section 332(6) of the RMA provides that any enforcement officer exercising any power under s332 may use such assistance as is 'reasonably necessary '.

In An Application by Waikato Regional Council [2002] A226/02, 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 S332 (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. A local authority might also use reasonable force to assist entry (an example might include the breaking of locks when the occupier was given a fair opportunity but refused to open them with a key, and the opening of the locks was necessary for the purposes of the inspection). However, 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.

Requirements of entry under s322

1: Production of warrant

The first step the enforcement officer must take upon entering a property is to make an attempt to find the owner or occupier. If the owner or occupier is present, the enforcement officer must produce the warrant. If the owner/occupier later asks to see the warrant again, the warrant must be shown.

If more than one enforcement officer inspects, all officers must provide their warrants. 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 s2 of the RMA), the warrant should still be produced.

2: 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. A photograph of the notice as evidence of compliance with s332(4) of the RMA should be taken and, in addition to leaving written notice at the site, a letter should be sent to the owner/occupier notifying them of the visit.

In Marlborough District Council v Searle [1996] CRN 6006004645 the defendant argued that the enforcement officers ' entry upon the land was illegal because the enforcement officers had not complied with s332(4). While the search might have been illegal, the Court held that the evidence was admissible because it could have been obtained without entering the property.

If the owner/occupier is not present, s332(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 s338(3). The maximum penalty is $1,500.

Powers of search

Search warrants - s334 and s335

Under s334, an application for a warrant for entry to search can be made where there are reasonable grounds for believing an offence has been committed that is punishable by imprisonment. In particular, warrants are obtainable to search for specified things for which there are reasonable grounds to believe that they:

The wording in the second item above indicates a search warrant can be pre-emptive.

The power to seize applies not only to what is specified in a warrant, but also to any other thing for which the enforcement officer or constable reasonably believes a warrant could have been obtained.

In Waikato Regional Council v Wellington City Council (HC Auckland AP18-SWO3) the High Court found that if the purpose of the visit is to obtain evidence to support the prosecution of an imprisonable offence (assuming an offence has been detected), s334 applies and a warrant is required. Note that some RMA offences are not imprisonable, eg, noise notices under s327 and s322(1)(c).

Section 335 provides that the warrant must be executed by either a constable or an enforcement officer accompanied by a constable. There are various requirements under s335(4) to show the warrant, to leave written notice of the search if the owner/occupier is not present at the time, and to send a list of taken items to the owner or occupier.

In Auckland Regional Council v Horticultural Processors Ltd [1993] CRN 2090016530, 31, 33, 36,the Auckland Regional Council obtained warrants to search the premises of Horticultural Processors Ltd for obtaining evidence to confirm the source of the material that was discharged.

Illegal and unreasonable searches

If a search breaks any law or breaches the legal rights of any person (such as failing to provide proper notice), a judge may exclude, from consideration, the evidence that was obtained during the search. Section 30 of the Evidence Act applies in such circumstances. The judge will consider things such as "whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used".

A search may also be unreasonable or 'unfair ' even if legal. An example is when there was no good reason to enter, or to enter with force, after permission was refused. The purpose is to protect privacy from arbitrary intrusions. Section 21 of the New Zealand Bill of Rights Act requires that any search or seizure undertaken in the exercise of a public function must be reasonable. Proceedings in relation to s21 may also result in monetary damages or compensation.

Previous cases are still relevant to the extent consistent with the provisions and purposes of the Evidence Act. In Marlborough District Council v Searle [1996] CRN 6006004645 the Court refused to exercise the discretion to exclude evidence obtained from a search that did not comply with the requirements of s332 of the RMA.

The leading case on unreasonable searches is R. v Grayson and Anor [1996] CA 255/96. The Court of Appeal held that applying s21 of the Bill of Rights is an exercise in weighing legitimate state interests, including law enforcement considerations, against any intrusions on individual interests including privacy. Contemporary society attaches a high value to privacy and to the security of personal privacy against arbitrary intrusions by those in authority. Privacy values underlying the guarantee in s21 of the Bill of Rights are those held by the community at large.

Power to require certain information - s22

The RMA gives enforcement officers the power to require a suspect to provide information as to their identity (note: the power is slightly broader in relation to Local Government Act offences - s178 of the LGA).

Under s22 of the RMA, if the officer has reasonable grounds to believe that a person (person A) is breaching or has breached any obligations under this part, the officer can direct person A to give the officer the following information:

The officer can also direct person A to give the following information about a person (person B) on whose behalf person A is breaching or has breached any obligations under this part:

It is an offence not to provide this information (s338(2) of the RMA).

Investigation procedures

Should the incident be investigated?

The first question for a local authority when it becomes aware of an incident taking or having taken place, is whether it should apply its resources to investigating the matter. The first indication of an incident is likely to come from a public complaint, though it may also be the result of the local authority 's own monitoring.

A local authority may want to screen any incidents it has become aware of against a set of priorities for the inspection of incidents. This may result in some matters getting more urgent attention.

Usually a decision about whether to pursue an investigation cannot be made until after the first inspection. That inspection should tell the local authority whether a contravention within the local authority 's jurisdiction is likely to have taken place - in terms of its functions under s30 and s31, or the applicability of the duties in Part 3 of the RMA, and any mandatory directive such as an abatement notice.

Each incident will be different and decisions will need to be made on a case-by-case basis.

Planning the investigation

During the investigation, it is often helpful to plan generally, and for particular inspections and interviews. Planning is more important as cases become more complex, and more possibilities present themselves. The kinds of questions enforcement officers may ask themselves might include:

Teamwork is an important part of complex investigations. If the case is proving challenging, consider asking for partners in solving it: help could come from another compliance person or, if you are sole-charge, a planner or team leader who has an interest.

All the tools of group-thinking and problem solving can be drawn on. At the simplest level you might brainstorm and white-board your leads and ask what more you can do with them. A good resource is the MindTools website.

Inspections

This section focuses on procedures related to inspection. Some topics, for example note-taking, may also apply more generally to evidence collection.

Preparation

Preliminary research can help you get the most out of your site visit. Inquiries might include:

Investigation and collecting evidence onsite

Once on-site, an enforcement officer may collate information and evidence through a variety of means including:

Checklists can be useful in guiding the investigation and collecting evidence. They can serve as prompts to:

Scene diagrams

A scene diagram is a way of illustrating the evidence you are giving in court. Its accuracy might be challenged, so prepare a drawing at the scene first. This will give you confidence about the details and help refresh your memory if necessary.

While the diagram should be kept simple if possible, it might include the following features:

An effective method for investigations where features of the land or land use are important, is to use acetate sheets. Overlay these on land-base maps of the area, which may incorporate, for example, roads and infrastructure, topography, aerial photographs, property boundaries, or zoning. If relevant your sketch should include any variations to the underlying land-base information.

Finalising a scene diagram on a computer produces the best result. A few arrows and labels pointing to key features can be helpful.

Sampling

If measurements are material facts in an offence, the measurements may be of a resource or natural area or population of things rather than a specific object. If so, then choices must be made about what parts of that resource or natural area or members of the population are sampled for measurement. For economic and practical reasons, the number of samples must be limited, but the investigating officer must ensure any samples are as representative as possible.

For example, random sampling either across a broad population or within target strata (categories or groupings) is generally the most representative method. In some cases, randomness can be approximated by walk-through sampling of an affected area, so long as a large number of locations are used; beware that certain features of an area that are likely to capture attention, may bias the sample.

If average concentrations of a contaminant are calculated, the result may be below the levels that actually caused damage. This can establish a misleading defence or mitigating factor on penalty. You may wish to consider the path of the contaminant and restrict your sample to that path, to better approximate the levels that caused damage. One approach to determine the path is to work backwards from the location of the complaint to the site of discharge, taking into account the mechanics or methods of discharge and any external factors such as wind direction.

You should adapt sample collection to is the type of material being sampled. The method should be scientifically acceptable. For example:

All other possible causes must be considered and excluded. For example:

Use laboratories with registered quality assurance procedures. Make sure that the laboratory completes a chain of custody (PDF, 14 KB) 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 or cross-contaminated.

Technical instruments

Enforcement officers are likely to use a variety of technical instruments in collecting samples and in carrying out field measurements. The admissibility of data generated by mechanical or computerised instruments is subject to the Evidence Act. To be able to admit evidence collected by the use of an instrument it is necessary to show the following:

Time

Some types of samples need to be dealt with quickly to avoid degradation and maintain their evidential integrity. Some samples may need to be frozen or stored in airtight containers until decisions are made as to whether, for example, the sample should be sent to a laboratory for analysis.

Sampling may need to be repeated to take account of any lag in time until the full extent of damage occurs.

Witness evidence should be taken as soon as possible after an incident, so the events are fresh in mind. Recorded statements will assist the witness in preparation for court later. The leads gained are likely to be more accurate immediately after an incident.

Chain of custody

The chain of custody practice ensures that you know, and can account for, exactly what happened to a sample from the time an enforcement officer took it from its original site until the time an expert (or the court) can assess it.

The practice avoids the risk that evidence could be changed, whether deliberately or mistakenly (eg, by cross-contamination of samples), to bear more weight against the defendant than merited. For this reason, an identifiable person must always have the physical custody of a piece of evidence, and record the history of what the evidence was exposed to and which might affect its evidential characteristics (eg, utensils, gloves, or containers).

The chain of custody is particularly important when a number of people are involved in handling the sample. This could include a company contracted to take the sample, and a laboratory to analyse it. When the sample is not with you, you must be able to account for its location (eg, "I placed the sample in a chilly bin in the local authority vehicle and I locked the vehicle").

In practice, the chain of custody means the following:

Examples of measures taken to secure the chain of custody include:

Three relevant cases relating to the taking of samples and the chain of custody are

Note taking

Notes from inspections and interviews (whether formal, on-site or on the phone) are essential for the following reasons:

Refreshing memory from notes

The elements of an offence are sometimes multiple and technical, involving such things as dimensions, gradients, materials, or species. They sometimes also capture a concept where there is room for personal interpretation, like what is 'offensive ' or 'obstructive '. The details are very important, and 6-12 months after the event when you are in a court room being cross-examined, there is a good chance you will not be able to clearly recall all those details and how you ascertained them.

Fortunately, the law allows witnesses to refresh their memory from documents, with the prior leave of the judge and after being shown to all parties: s90(4),(5) of the Evidence Act. The document must have been made or adopted at a time when the witness ' memory was fresh. This may depend on the circumstances: making a note a few hours after a site visit may qualify, but it could be questioned if for example other similar sites were seen or other detailed inquiries undertaken in the intervening time.

If notes are rewritten or typed, always keep or scan the original hand-written notes. These notes are the contemporaneous record that you will rely on in court to refresh your memory.

Taking photographs

A photograph can depict facts important to determining whether an offence has occurred, such as the damage done by the offence occurring. Photos are advantageous because they:

The key benefits of photographs should guide the investigator in taking them:

Photographs are powerful, but without some explanation their value is limited. They are best produced at court with an explanation both of what is in them and of the circumstances in which they were taken. It is a good idea to record this information in a notebook at the time; the date and location of the evidence found and photographed may be critical.

Never be shy of taking photographs. It is better to have a treasury to select your finest from, than a lack that requires you to go back later when the scene may have changed and evidence been removed.

Section 332 of the RMA does not specifically allow enforcement officers to take photographs, although in most cases the owner or occupier does not object to photographs being taken. In Waitakere City Council v Gordon [1999] MA99/99,the District Court Judge commented that a warrant under s334 of the RMA would always be a wise precaution. Compare this to An Application by Waikato Regional Council v Wellington [2002] A226/02, where the Environment Court Judge considered the Waitakere case and stated that photographs are an aid for recalling what the officer has seen and are part and parcel of recording an inspection. The issue was not considered in the High Court on appeal.

Interviews and statements

Purpose

Generally interviews are designed to record what witnesses to an offence observed, not what they thought about it. Nevertheless, the witnesses ' opinions and intuition can provide enforcement officers with leads that can be tested through asking further questions about why the witnesses think what they do.

The main focus, while ensuring some basic freedom in the interview, is to assist interviewees to tell their story - all that they can recollect, in a way that is most productive. This could mean that an interview on-site is best, or with photographs of the incident, or in a quiet space away from their usual distractions.

Interviews may produce different kinds of results:

Approach

Remember, an interviewee is not on trial, and care needs to be taken to avoid the line of questioning becoming aggressive. There is nothing wrong with trying to strike up a rapport; engage with the person first about things particular to their experience that you share some knowledge or interest in, before inviting the answer to some questions. Enforcement officers are more likely to get witnesses or suspects thinking carefully about what they observed if they are happy to be part of an investigation.

Nothing can replace practice when interviewing. A good way to practice in a safe setting is to question your colleagues on a story they know but you don 't. It is also a good idea to sit in on interviews and observe experienced officers in action.

It is recommended that enforcement officers follow a consistent format and structure when carrying out interviews. This will help you get the most out of your time with an interviewee, and keep things on track if the interviewee is difficult or distracted. It will also enable lessons (positive and negative) obtained from previous interviews to be incorporated into future interviews.

Planning the interview

It is good practice for enforcement officers to:

Conducting the interview

A framework for conducting interviews follows the acronym PEACE:

Planning and preparation: Ensure that you find a space for your interview that permits minimal distractions, especially for potentially difficult interviews with suspects.

Engage and explain: This involves assessing the personality of an interviewee at the beginning of an interview, adapting your style to fit the style and personality of the interviewee so that you can get the most out of them. It also involves establishing the ground rules for the interview: explaining what it is for and how it will proceed; try to get buy-in from the interviewee about that.

Account, clarification and challenge: This involves the central purpose of an interview: obtaining a person 's account of what happened. You should take care to clarify what someone says, when statements are vague or ambiguous. You should also be ready to challenge an account when you know the information given is false. Your challenge should be adapted to the person - to what is more likely to work with the interviewee.

Closure: Check that you have covered all the basics (the "who, where, what, why, when and how" of the events witnessed). Your understanding of the key points of the account should be summarised to ensure accuracy. Query, ask for clarification on, or otherwise consider anything you still don 't understand, which remains vague, or which is subject to a discrepancy with other evidence you have collected; consider how to obtain further information from the interviewee that might assist.

Evaluation: Finally, assess what the enforcement officer has learnt on two fronts:

  1. What has been discovered in relation to the investigation and what other enquiries should now be pursued as a result of the interview?
  2. What can be done to improve the interviewing technique and confidence? Assessment from peers may assist here.

Statement taking

The importance of recorded statements

It is good practice to summarise a person 's account or statement about key events. The record is important for a number of reasons:

  1. Information discovered to date can be traced and it becomes easier to determine where to take the investigation next.
  2. Statements are useful for briefing witnesses if they are to appear in court later; their earlier statements can be used as a starting point.
  3. Witnesses can use statements to remind themselves in court if they were made at a time when the events recorded in it were fresh in their memory ('refreshing memory rule ' in s90(4),(5) of the Evidence Act)
  4. A statement may still be admissible as evidence even when the witness has forgotten some of what was said, provided that the information is useful and reliable for the court (exception to previous consistent statements rule s35(3) of the EA)
  5. If a witness makes mistakes in court, the prosecutor can correct them by offering a previous statement in relation to the facts of the case (s37(4)(b) of the EA)
  6. If a prosecution witness actually becomes hostile, the prosecutor can (with the judge 's leave) cross-examine the witness using previous statement to show inconsistency: (s37(4)(a) of the EA). In this way, the prosecutor may limit damage done to the case by casting doubt on the witness 's disposition to tell the truth.
  7. A statement can be used in court to back up what a witness has said, if the defence challenges the ability to provide an accurate and truthful account on account of a previous but recent inconsistent statement or claim (s35(2) of the EA).
  8. A statement might be admitted if the statement-maker is unavailable as a witness, so long as the circumstances provide reasonable assurance that the statement is reliable (exception to the hearsay rule s18(1) of the EA).

Note that the general rule is that, if consistent with what the witness will say in court, the statement is inadmissible. The purpose of the rule is to focus the fact-finding on evidence given by a witness in court: evidence of statements made consistently outside of court generally add nothing to a case; evidence is best tested in court through cross-examination of a witness. But there are exceptions.

If the statement-maker is a defendant, recording the statement may be important because:

Given how useful a recorded statement can be, it is important to make sure that the method of taking it and the circumstances in which it is taken do not prevent its admission into evidence at court.

Statements with no signature or that are changed

If the statement-maker refuses to sign a statement, as a suspect may, the enforcement officer should still date and sign the record of what was said and make precise notes of the circumstances and refusal. The lack of endorsement may not necessarily invalidate the statement as the court will weigh the lack of endorsement against other factors.

Statement-makers wanting to correct what has been recorded should write in the correction themselves and sign it on the same page. By reference to their handwriting and signature, any later allegation that you made an alteration without their approval can be resisted.

Hearsay

Sometimes a potential witness, or an enforcement officer, may talk not about what was observed, but what was told by another person who made the original observation. Such hearsay statements are inadmissible in court unless the other person is also a witness.

Evidence offered by the prosecution of a statement made by a defendant is admissible and the rules of hearsay, opinion and previous consistent statements do not apply (s27 of the Evidence Act). The statement may be excluded for other reasons including reliability, oppression, and improperly obtained evidence (ss28-30 of the EA).

Rules and limitations on interviews and statements

Freedom to leave

Section 22 of the New Zealand Bill of Rights Act prohibits arbitrary arrest or detention. There is no specific power under the RMA to detain for questioning or arrest for offences; therefore the interviewer must avoid the inference that the interviewee is not free to refuse the interview or depart at any time. The test is whether the interviewee reasonably formed the perception that he or she was not free to go. An obvious example would be directing an interviewee during a meeting to 'stay put '.

Under s22 of the RMA, the only information the person interviewed is required to give an enforcement officer on request is:

The officer can also direct person A to give the following information about a person (person B) on whose behalf person A is breaching or has breached any obligations under this part:

Cautioning a potential defendant

There is a divergence of practice in New Zealand about formally cautioning defendants for local government offences. A caution involves telling potential defendants that they do not have to say anything but what they do say may be taken down and used as evidence against them in criminal proceedings.

Cautioning first became standard (police) practice in England after 1912 as a result of the Judges ' Rules - guidelines that judges would follow in using their discretion to exclude evidence and ensure a fair trial. The rules were formulated to deal with concerns about police conduct in detaining and questioning suspects, and in particular the divergence in practice between different police forces. High Court Judge Lawrence J explained in R. v Voisin [1918] 1 KB 531, that:

In 1912 the judges, at the request of the Home Secretary, drew up some rules as guidance for police officers. These rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners, contrary to the spirit of these rules, may be rejected as evidence by the judge presiding at the trial.

Strictly speaking, the Judges ' Rules have only ever applied to police interviews. More generally, section 23(4) of the New Zealand Bill of Rights Act provides that:

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.

Under the RMA, there is no right of arrest or detention, so s23(4) of the New Zealand Bill of Rights Act does not apply.

The law in this area may develop further. Today, the Judges ' Rules are relevant to a judge 's discretion to exclude 'improperly obtained ' evidence for unfairness (s30 of the Evidence Act) and to the exclusion of defendant statements made in circumstances that affected their reliability (s28 of the EA).

While the Judges ' Rules apply only to the police, fairness applies to all investigations. Being fair before asking a suspect questions might mean you say you have information suggesting an offence has been committed, and that you are obliged to investigate and make a decision about how to proceed under the RMA. When there is a possibility that a suspect makes to an enforcement officer an admission that may not ordinarily be made, it is arguable that the potential defendant should be advised to take care about what is said.

Any developments in this area are likely to be balanced against the fundamental reforming principle of the Evidence Act, to facilitate the admission of any evidence that will assist the court in determining proceedings.

Reliability of statements

In court the defendant (on an evidential foundation) or judge may raise the issue that they believe the circumstances in which the statement was made adversely affected reliability (s28 of the Evidence Act). The prosecution may choose to make no particular response, but the judge must be satisfied that reliability was not affected - or the statement is excluded. Relevant circumstances include:

The defendant (on an evidential foundation) or judge may also raise the issue of the statement being influenced by oppression (s29 of the EA).

If the issue of oppression is raised, the prosecution is obliged to show beyond reasonable doubt that that statement was not influenced by oppression - or the statement is excluded.

These guidelines overlap with the general obligation to conduct an investigation fairly, and the exclusion of improperly obtained evidence under s30 of the EA:

If an enforcement officer thinks a suspect perceives a threat or inducement to answer questions, it should be made clear that the suspect is free to refuse the interview and leave at any time.

The issue with inducements is whether the behaviour of the investigating officer(s) caused admissions that would not have occurred but for that behaviour. Examples might include duress, unusual compensation, or pretending to be someone you are not (referred to as 'entrapment ' in some foreign jurisdictions). If the suspect was ordinarily subject to and a willing participant in the behaviour, it would go against such a finding.

Expert opinion on the evidence collected

Enforcement officers will sometimes need to seek opinions of experts or suitably qualified professionals to establish whether an element needed to prove an offence has been met. This could happen when the evidence is of a particularly technical nature, requires legal interpretation, or requires the input of someone with extensive experience of a matter that is otherwise difficult to objectively measure.

On other occasions, witnesses may be keen to make comments about the matter under investigation, offering their opinion on particular facts when making a statement.

Generally, a court will not admit opinion unless it is from an expert on the facts subject to the opinion and the opinion will offer substantial assistance to the fact-finder judge or jury (s23-25 of the Evidence Act). The opinion can be given even if it relates to a matter of common knowledge or to the ultimate issue in the case. The opinion rule is important when:

Matters of perception are sometimes interpretative, so s24 of the EA also allows general opinion (something necessary for a witness to communicate what they saw, heard or otherwise perceived). Note that case law about opinion may still be applicable, in particular that a person may become expert by virtue of repeated experience of a fact or process - even during the course of an investigation.

Veracity and propensity evidence

During the course of an investigation, the enforcement officer may well find out about activities, relationships and other dealings of a suspect that influence one 's opinion about the disposition of the suspect to tell the truth (veracity) and to have committed the alleged offence (propensity).

These are matters of character: evidence about them is strictly controlled by the courts, because they may prejudice a fact finder (especially a jury) even if not directly relevant to the case.

Veracity evidence is not admissible unless it is substantially helpful in assessing a person 's veracity. Relevant examples under s37(3) of the Evidence Act include:

The prosecution may not offer veracity evidence about the defendant unless the judge gives leave and the defendant first raises veracity, either by giving such evidence about him or herself or by challenging the veracity of a prosecution witness by reference to a matter other than facts in issue.

Propensity evidence is typically encountered when enforcement officers would check records to see whether a suspect has been the subject of previous investigations.

The prosecution may only offer propensity evidence about a defendant in accordance with s43 of the Evidence Act. The judge has discretion to allow propensity evidence by balancing its value as evidence against the risk of an unfair prejudicial effect. For example, previous convictions for similar offences are typically very prejudicial.

Whether the effect of allowing propensity evidence is unfair depends on:

If offering evidence of previous convictions, the prosecution must first inform the judge as to the purpose of doing so. The judge 's inquiry may trigger an analysis under s38 of the EA for veracity - such evidence not being allowed without the defendant first raising veracity. For example, the previous convictions may refute a statement that the defendant has "a good record of compliance in this city".

The investigation file

The investigation file contains all relevant information concerning the current investigation including (where relevant and where available) such things as:

It helps to group this information in sections, then arrange it chronologically within each section. For example:

To assist your thinking on the case, you might add an overview section to the file including:

The investigation file would be used as the base from which to compile a prosecution file for hearing, which would include:

Some additional relevant rules of evidence

The best evidence rule

The best evidence rule is a reminder to preserve original documents for production in court. The rule exists in the common law and remains to the extent it is consistent with promotion of the purpose and principles of the Evidence Act (s10, s12). The rule must therefore be approached as a guide rather a strict requirement, with the primary objective that all relevant and reliable evidence is admitted.

Reliability is the main test: where a copy is reliable, it is likely to be admitted. Manual copying should be supported by evidence of the copying process to establish reliability. An automatic copying device or technical process will not require proof of having produced an accurate copy, if it ordinarily does what is asserted (s137 of the Evidence Act). The defence may, however, raise evidence of inaccuracy or intervention in the process, eg, that digital photographs were copied and modified.

Note that photographs may be enhanced or otherwise modified and remain admissible, if the purpose of that enhancement is fair and relevant and can be clearly understood by the court: for this reason the original should always be kept to allow your purpose to be tested.

Disclosure of information

A local authority who prosecutes has a duty to disclose to the defendant any file notes and other documents relating to the prosecution. Communications between the local authority and its lawyer are excepted, as these are protected by solicitor-client privilege. Sections 51 to 67 of the Evidence Act contain further information about privilege.

The duty of the prosecution to disclose information to the defence was set 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 defendant copies of briefs of evidence, witnesses ' statements and interview notes on request. Such information is personal information within the Act, and the defendant 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.

If the local authority takes enforcement action other than prosecution, the party against whom the action is taken can make a request under the Local Government Official Information and Meetings Act 1987. Copies of documents on the local authority file will then 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.

Publicising enforcement action

Prejudice to the defendant

Defendants prosecuted under the RMA for offences against s338(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.

Subjudice

Generally public comment is not made about a case when it is still before the courts and the determination of guilt or innocence is yet to be made. The media do, however, report about matters before the Court makes a decision.

Best practice examples

Scenarios

Scenario 1: Dumping of sandblasting material

Harry and two other enforcement officers respond to an urgent complaint of dumping of spent sandblasting sand at an unauthorised dump site. When Harry and colleagues arrive at the site they find a man standing next to a truck whose trailer contains a large quantity of sand with traces of paint flakes.

A stream at the site is a tributary to a waterway that has been identified in the regional plan as significant. All three enforcement officers introduce themselves to the man at the site and produce their warrants. The man tells Harry his name and address but he will not give any other information.

Harry uses a trowel to collect sand from the trailer of the truck. He then uses the same trowel to collect samples from a pile of sand which is near the truck but does not clean the trowel between collecting the various samples. Harry sends the samples to an external laboratory and asks the laboratory to complete a chain of custody form.

Harry suspects that the sand is from a local sandblasting firm and pays a visit. The firm refuses to give Harry information.

A month after the incident Harry is notified by the laboratory there was a slip-up and the chain of custody form was not completed.

Q1: Does the council have sufficient evidence to prosecute?

A1: The council should only prosecute if it can obtain further evidence. At this stage the evidence is substandard. To prosecute, the council has to prove breach of s15(1)(b) and/or s15(1)(d). The standard of proof must be beyond reasonable doubt. There is a possibility of cross-contamination of the samples and the chain of custody form has not been completed.

Scenario 2: Illegal vegetation removal

The council receives complaints that a large area of native vegetation is being felled illegally. Harry investigates together with another enforcement officer and speaks to the property owner and the contractor who has just finished work for the day.

Harry estimates that an area of about 1 hectare has been cleared. A resource consent has not been granted although this is required under the District Plan. Harry and colleague show their warrants to the property owner, Mr Smith, and to the contractor. Harry takes a number of photographs.

Harry asks Mr Smith to stop cutting down the vegetation. Harry explains that Smith is in breach of the District Plan and is therefore in breach of the RMA.

Some of the vegetation has fallen into a nearby stream and Harry expresses his concern to Smith that this vegetation may block the stream and cause flooding to the upstream property. Harry also talks to the contractor and gives him the same information. He also explains that, even though the contractor is acting under instructions from Smith, the contractor is in contravention of the RMA and the council can take enforcement steps against him, including prosecution.

The contractor tells Harry he has another job arranged for the next week but intends to return to Smith 's property and continue to fell vegetation in the week thereafter. Smith tells Harry he intends to continue clearing the vegetation and that Harry has no right to tell him what to do on his own property. Smith picks up a chainsaw and waves this menacingly at the other enforcement officer.

Q1: What is the appropriate action to take?

A1: Harry and the other enforcement officer should immediately leave the property. They may be in danger. Harry should arrange for an application for an interim enforcement order to be filed, supported by an affidavit from himself and his colleague.

The photographs taken should be annexed as exhibits. Harry should explain in the affidavit that Smith and the contractor refused to cooperate, that clearing of this vegetation is in breach of district plan and that no resource consent has been issued. The council can prosecute.

Scenario 3: Objectionable odour

The council receives numerous complaints about odour from a pig farm. The farm is about 30 kilometres from the Council's main office and surrounded by 15 lifestyle blocks.

Ten of the 15 neighbours are complaining. Three of them do not complain, and these neighbours work at the farm which is the largest pig farm in New Zealand. It started in the 1970s with about 300 pigs, but now has about 5000 pigs.

Harry and other council enforcement officers investigate and find that many of the complaints are justified.

The odour conditions in the existing resource consent are:

Q1: What is the most appropriate enforcement mechanism?

A1: Further investigation has to be carried out before deciding on an enforcement mechanism. Council staff should meet with the complainants and find out if they agree to the council informing the pig farmer of the names of the complainants. It should be pointed out that if the complainants want to remain anonymous, the council will have difficulty taking enforcement action. Council staff should then speak to the pig farmer and inform him about the complaints.

Q2: What evidence should be collected?

A2: Evidence should be carefully collected. Any other possible sources of odour should be excluded (conduct a 360-degree check around the pig farm). All complaints should be recorded and a strategy put in place to respond to complaints. Draft a scale for assessing the odour. The scale should incorporate factors in the consent conditions (eg, frequency, intensity and duration). A scale of 1-5 is easier to work with than one of  1-10.

Fact analysis

Level of inquiry

Example elements

Relevant facts (+ evidence for any inferred facts)

What is the offence?

s338(1)(a) of the RMA:

Breach of s9 of the RMA:

using land in a manner that contravenes a rule in a District Plan without resource consent or existing use rights:

Rule 5C.7.3.3C General Tree Protection

 

What are the legal elements?

1. A person who contravenes or permits a contravention of section 9: land used in a manner that contravenes a rule in a District Plan - 5C.7.3.3C General Tree Protection:

 
  1. cut, damaged, altered, injured, destroyed or partially destroyed

 
  1. in residential 1, 3a, 5, 6, 7 zones

 
  1. indigenous tree

 
  1. with multiple trunks

 
  1. where each trunk with a circumference of 250 mm or more

 
  1. collectively measure a girth over 600 mm

 
  1. taken at 1.4 m above ground

 

2. Date

 

 

3. Are any defences applicable?

 

Who is the offender?

 

 

 

Search warrants

How do I draft a search warrant application?

There are no specific forms in the RMA for search warrants. The form contained in s198 of the Summary Proceedings Act 1957 can be used as a guide. (See an example (PDF, 43 KB) drafted for a district plan matter).

In making the application and showing reasonable grounds for belief, inferences are often important. You usually build those inferences by laying out a chronology of the investigation, with details of relevant findings at different points in the investigation.

Be aware of the fact that a search warrant is to cover an intrusion on privacy. It is a mechanism to provide scrutiny of your powers and investigative purpose, and balance these against individual freedom. You should include anything prejudicial to the search, such as the fact you are relying on leads provided by a neighbour who is in dispute with your suspect. Including the material is important because your suspect is not present during the application to challenge it. A registrar or judge 's scrutiny now may save a finding of unreasonable search later.

More good practice tips about search warrants

The first time a local authority seeks to obtain a search warrant under the RMA, it will be important to discuss the RMA and s334 with the District Court registrar. It is a good idea to:

On-site, it is effective to have:

Relevant case law

Relevant case law has been referred to throughout this guidance note, with links to fuller summaries when appropriate.

Related guidance notes

Current challenges

Entry and search

Dealing with difficult people

The safety of an enforcement officer (and those assisting) is the most important consideration. If threatened, an enforcement officer should retreat in the first instance until the necessary security assistance is available to enable safe completion of the investigation. Here are some pointers.

Search warrants for gathering further information

The power of inspection is to determine compliance (s332 of the RMA). Once compliance is determined on all relevant matters on-site, this power may be considered to have been exhausted and a person is entitled to privacy again.

According to the High Court in Waikato Regional Council v Wellington City Council (HC Auckland AP18-SWO3), the need for a search warrant depends on the purpose of the visit.

A cautious approach will favour obtaining search warrants if permission is refused for inspections after a breach is first found. However, new complaints may be received, or an enforcement officer may need access to the site to assess the situation in order to take preventative or remedial actions for new or ongoing adverse effects. It would then be an unreasonable restriction of the functions and purpose of the RMA, to require a search warrant even when a breach of the RMA had been detected on previous visits and prosecution is being considered. Entry powers might be exercised for the remedial purpose, and then the possibility that the evidence would be excluded, taken into account when the local authority decides to build a case for prosecution.

Acknowledgements

Quality Planning would like to make the following acknowledgements.

Published October 2009.