Absence of fault

A test derived from Millar v Ministry of Transport [1986] 1 NZLR 660 and cited in Auckland City Council v Selwyn Mews Ltd [2003] CRN2004067301-19 and Canterbury RC v Pattullo [2010] CRI-2010-009-14493, 15 December 2011 as: "the defendant has the burden of showing on the balance of probabilities that he [or she] and all those for whom he [or she] is responsible acted honestly and with all due diligence".

Affected, or Likely to be affected

Determining whether something or someone is affected is generally a straight-forward assessment. However, determining whether something or someone is likely to be affected requires more careful consideration.

Use of the word likely introduces an element of probability as opposed to a mere possibility or potential. A probable event is one that is expected to occur or to exist. In other words, there is a greater chance of it happening than not happening given the circumstances. An authorised person is therefore required to form an opinion that sufficient certainty or probability exists, and therefore immediate action is called for.

Beyond reasonable doubt

The Court must be satisfied or sure that a defendant committed the offence. It is not a calculation of probability. A Court must acquit a defendant if it is not satisfied or sure that the defendant committed the offence.

In New Zeland, most Judges direct juries on the basis that the standard of proof beyond reasonable doubt is met if they “are sure”, or “feel sure”, that the accused is guilty, see R v Harmer CA324/02, 26 June 2003. To the extent to which the concept of reasonable doubt is separately addressed, it is referred to as a doubt which the jury regards as reasonable in the circumstances of the case. What is a reasonable doubt is sometimes explained as being more than a “vague or fanciful doubt”, see R v Ross CA224/98 18 March 1999 at [14]-[18] (refer R v Wanhalla [2007] 2 NZLR 573).

CDEM Group

The Civil Defence and Emergency Management Group consists of the local authorities within a defined geographical area. Its principal role is coordinating an overall response to an emergency; it does not necessarily have a direct involvement in all operational matters. There are currently 16 CDEM groups that together cover all of New Zealand. Each one may be regarded as a person for the purpose of s330B of the RMA, in that it is treated in the CDEM Act as being a legal person. The CDEM Group can appoint persons who can exercise emergency powers.

Community work

Controller

Refers to a person appointed under the CDEM Act 2002 as National Controller (s10), a Group Controller (s26), and Local Controller (s27). The National Controller may exercise powers over the whole of New Zealand or any areas or districts for which a state of national emergency exits. A Group and Local Controller may exercise powers in the area, or any district or ward for which they are appointed and for which a state of local emergency exists.

Defendant

Means any person charged with an offence. Defendant is defined in section 2 of the Summary Proceedings Act. In relation to an infringement offence, ‘defendant’ includes any person served with a reminder notice in respect of an offence, or any person who gives notice requesting a hearing in respect of the offence, pursuant to s21 of the Summary Proceedings Act.

Emergency

The powers in sections 330 and 330B can only be used for emergency works. While not defined in the RMA, the Concise Oxford Dictionary (tenth edition, 2001) defines an emergency as: "A serious, unexpected, and potentially dangerous situation requiring immediate action".

Emergencies usually consist of a sudden, uncontrolled event involving negative consequences or danger, and that require immediate steps to manage. The RMA provides that the emergency powers apply whether or not the sudden event was foreseeable.

In the RMA context, and emergency can either be:

• an event declared a “state of emergency” as defined under the Civil Defence Emergency Management Act; or
• when there is a need for immediate intervention to prevent or remedy adverse environmental effects or prevent loss of life, injury or serious damage to property.

Notwithstanding those circumstances, the emergency powers available under the Act can only be used by the owners of public works, local authorities, network utility authorities, and lifeline utilities (refer to the Guidance Note: Enforcement: Emergency Powers)

Informant

The prosecuting authority who makes the charges. In most cases it is taken as meaning the department, local body or other authority employing the enforcement officer or employee carrying out enforcement duties.

Information

The form containing a charge of an offence.

Infringement fee

In relation to an infringement offence, the infringement fee means the amount fixed as fine for the offence by or under the Act under which the offence is created.

Infringement notice

A notice issued under any provision of any other Act providing for the use of the infringement notice procedure under s21 of the Summary Proceedings Act.

Necessary

Its meaning is such that it does not suffice that the action contemplated be merely desirable or useful, or even advisable. When considering s341(2)(a)(i), which envisages a similar situation (though without the qualifier "immediately"), the Courts have noted that the word is directed towards the occasional and exceptional situation where pre-emptive action is required. For example in Fuglle and Hitchman v Cowie [1997] AP48/96 (HC), McGechan J found that 'necessary' has with it qualifying questions of timescale and proportion. If time is available to seek appropriate resource consents, then applications should be made. It is neither 'necessary' nor 'reasonable' to proceed with unnecessary haste. The meaning of the word also possesses an element of proportionality. Work may be 'necessary' for one purpose but its execution may cause unacceptable damage in other respects. Harm must not be disproportionate to cure.

Oppression

Oppressive, violent, inhuman or degrading conduct towards the defendant or others (e.g. their friends and family) or the threat of such conduct.

Propensity evidence

Defined in s40 of the Evidence Act 2006 as "evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind".

Standard of proof

The level of proof that the prosecutor must attain before a court will make a finding of guilt. In New Zealand law, the standard of proof is beyond reasonable doubt.

Strict liability offences

Offences in which the prosecution does not need to prove intention to commit an offence (wrongful intention) on the part of the defendant, but only the commission of the offence (that the defendant committed the prohibited act or omitted to do something required).

Subjudice

While a matter is under judicial consideration, comment on the case is prohibited because the matter has not yet been decided by the Court and is still debatable.

Sudden event

While the term is not defined in the RMA, the common meaning is an abrupt or abnormally rapid occurrence that is unexpected or without warning. (The RMA specifically provides that s330(1) applies whether or not the adverse effect or sudden event was foreseeable). Whether a given matter constitutes a sudden event needs to be considered in light of the circumstances. For example, the imminent collapse of a stopbank in a severe flooding incident may require emergency works, even though the council may have been aware that it already had weaknesses. The risks of a collapse, and not its cause, are what matters.

Veracity

Defined in s37(5) of the Evidence Act 2006 as the disposition to refrain from lying, whether generally or in the proceeding.

Vicarious liability

Liability imposed on one person for the wrongful act of another on the basis of the legal relationship between them (such as employer and employee).