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Gifford v District Court of New Zealand [2022] NZHC 851 (28 April 2022)

Last Updated: 6 May 2022

JUDGMENT OF GWYN J

Solicitors:

Wisheart MacNab & Partners, Blenheim Crown Law, Wellington

GIFFORD v THE DISTRICT COURT OF NEW ZEALAND [2022] NZHC 851 [28 April 2022]

Decision not amenable to judicial review [35]

Error of law [40]

On the evidence the charges were filed in time [59]

Charge 2 [60]

Charges 4 and 5 [65]

Analysis [72]

Is the decision amenable to judicial review? [72]

Error of law: was the Court required to apply a standard of proof in reaching its decision? If yes, what is the correct standard? [80]

Was the Judge correct on the facts? [99]

Result [101]

Costs [102]

Introduction

• [1] Mr Gifford has applied for judicial review of a decision of the District Court declining to dismiss charges against him under s 147 of the Criminal Procedure Act 2011 (the CPA).

• [2] Mr Gifford is subject to criminal proceedings commenced by the Marlborough District Council (the Council) alleging various breaches of the Resource Management Act 1991 (RMA).¹

• [3] Mr Gifford challenged six of the seven charges he faced, principally on the basis they were laid outside the six month timeframe prescribed by s 338(4) of the RMA. In two decisions, Judge Harland (as she then was) granted Mr Gifford’s application in relation to three charges, but dismissed the application on the remaining three charges.²

• [4] The application for review alleges that the District Court misapplied the law in relation to the charges it declined to dismiss in the First Decision, on the basis of those charges (charges 2, 4 and 5) being filed out of time. Mr Gifford says that, while the Court recognised that the onus was on the second respondent to prove the charges were brought in time, if failed to identify the standard to which that onus had to be discharged.

• [5] This Court has previously declined an application by the second respondent to strike out the judicial review application.³

Background

• [6] The plaintiff owns a property at Redwood Pass, Blenheim. The charges arise as a consequence of the delivery of grape marc to that property and its storage there at two separate sites. Those sites are a constructed grape marc pad on the western side of the Pukapuka Stream, referred to as “the compost pile” and a second site, without

¹ Mr Gifford has elected trial by jury, so the prosecution is now in the hands of the Crown Solicitor.

² R v Gifford [2018] NZDC 15725 [First Decision]; and R v Gifford [2019] NZDC 17977 [Second Decision], dated 7 December 2018 and 4 November 2019, respectively.

³ Gifford v the District Court of New Zealand [2021] NZHC 1258 [Strike-out Judgment].

a pad, on the eastern side of the Pukapuka Stream, referred to as the “stock feed pile”.⁴ Grape marc, or pomace, is the solid waste left over from pressing grapes into wine.

• [7] The background to the current charges was detailed by Judge Harland in the First Decision and Isac J in the Strike-out Judgment, and I repeat their summary here.

• [8] It appears that the applicant’s property has, over the years, been used as a clean fill site and a compost facility. Grape marc has been stored both before the applicant purchased the property in late December 2014 and after the purchase.⁵

• [9] Since February 2015, Council staff have been involved with the applicant in relation to the activities on the property.⁶ It is alleged that between February and June 2016, grape marc was stored on the property and, as a result, leachate from the marc may have entered either or both groundwater and a nearby stream, contrary to s 15(1)(b) and (d) of the RMA.

• [10] The Council laid a total of seven charges against Mr Gifford on 8 November 2016. The first charge is a charge of breach of an abatement notice. It is not in issue in this proceeding.

• [11] The remaining six charges related to the two sites and alleged:

(a) a discharge to land from an industrial or trade premises (being the locations where the grape marc was stored);

(b) a discharge to land in circumstances where a contaminant (the leachate from the grape marc) may have entered a nearby stream; and

(c) a discharge to land in circumstances where the leachate may have entered ground water.

⁴ First Decision, above n 2, at [9].

⁵ First Decision, above n 2, at [19].

⁶ At [20]. Judge Harland noted that it should not be inferred from this that the interactions between the Council and Mr Gifford were because of potentially unlawful activities occurring there.

• [12] Mr Gifford applied for a discharge under s 147 of the CPA of those six charges, arguing that the charging documents were not laid in time, as required by s 338(4) of the RMA which, at the relevant time, provided:

338 Offences against this Act

...

(4) Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against subsection (1), (1A), or (1B) ends on the date that is 6 months after the date on which the contravention giving rise to the charge first became known, or should have become known, to the local authority or consent authority.

(emphasis added).

• [13] As Isac J noted,⁷ there are two limbs to the enquiry under s 338(4): first, the date the local authority had actual knowledge of the contravention giving rise to the charge or, alternatively, the date it should have known of the contravention.

• [14] In the First Decision and Second Decision, the Judge dismissed three of the charges.⁸ The Court found one charge to have been laid at a time when, on the evidence, the Judge was satisfied that Council officers had constructive knowledge of the contravention giving rise to the charge at an earlier date.⁹ The charge was thus laid out of time, contrary to s 338(4) of the RMA.

• [15] In relation to two further charges, the Judge found that the Crown could not establish that the locations from which it was alleged the leachate was discharged constituted “industrial or trade premises”, which was a necessary ingredient of the charges.¹⁰

• [16] However, the District Court was not satisfied that three remaining charges were filed out of time.¹¹ In relation to charge 2, the Court concluded that the potential of leachate to enter the stream was “too remote to be considered a possibility on 6 May

⁷ Strike-out Judgment, above n 3, at [13].

⁸ First Decision and Second Decision, above n 2.

⁹ First Decision, above n 2, at [95].

¹⁰ Second Decision, above n 2, at [42]-[44]. Section 15(1)(d) of the RMA provides “no person may discharge any... contaminant from any industrial or trade premises onto or into lands”.

¹¹ First Decision, above n 2, at [97] and [117].

2016”.¹² In relation to charges 4 and 5, the Court found that the test it was required to consider was “whether there is sufficient information to establish the likelihood of the commission of an offence”.¹³

• [17] The decision in relation to those charges is the subject of the current application for judicial review.

• [18] Since the Strike-out Judgment, the applicant has filed an amended statement of claim dated 10 November 2021 and the second respondent has filed an amended statement of defence dated 3 December 2021.

• [19] The essence of the amended claim is that the Judge erred by applying what appears to be a civil standard of proof to the question of whether the Council’s officers had constructive knowledge of the likely commission of the relevant offences. The basis for this argument appears in particular in one paragraph of the First Decision, in which the Court noted that the “matter is a finely balanced one”.¹⁴ Mr Shamy, for the applicant, argues that this indicated the District Court applied the wrong standard of proof.

• [20] The applicant says that, while recognising that the onus lay on the prosecution to prove the charges were brought in time, the Court failed to identify the standard to which this onus must be discharged. The correct standard was:

(a) beyond reasonable doubt, as the issue of a limitation period is similar to a defence; or

(b) alternatively, if it is not a defence, the standard of beyond reasonable doubt is required as a necessary corollary of s 25(b) and (c) of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act); or

(c) alternatively, if the standard is not beyond reasonable doubt, then the civil standard of the balance of probabilities.

¹² First Decision, above n 2, at [96].

¹³ First Decision, above n 2, at [116].

¹⁴ First Decision, above n 2, at [116].

• [21] The applicant says that neither standard was applied in terms of charges 2, 4 and 5:

(a) In terms of charge 2, the Judge concluded that the potential of leachate to enter the stream was “too remote to be considered a possibility on 6 May 2016”.¹⁵

(b) In relation to charges 4 and 5, the Judge found that the test the Court was required to consider was “whether there is sufficient information to establish the likelihood of the commission of the offence”.¹⁶

(c) The Judge observed that questions of scale and degree of what the Council Officers observed was relevant, and, overall:¹⁷

While the matter is a finely balanced one, I consider that the quantities of grape marc the officers observed on 1 and 12 April, and the situation in which they observed, it was not sufficient for them to conclude that leachate from the grape marc present was of concern. In my view, this conclusion was only able to be reached by June 2016.

Submissions

For the applicant

• [22] In response to the Crown’s submission that judicial review should not be available here, the applicant says that the availability of an appeal does not exclude judicial review.¹⁸ In this case there is no effective right of appeal. The applicant would be required to go through a process which may turn out to be illegitimate, be convicted and then take his chances in the appellate court. The issue is not one of evidential sufficiency or admissibility of evidence, it is whether as a matter of law the Judge has applied any standard of proof and if so what the appropriate standard was. As a matter of common sense, that issue should be addressed at the beginning of proceedings.

¹⁵ First Decision, above n 2, at [96].

¹⁶ First Decision, above n 2, at [116].

¹⁷ First Decision, above n 2, at [116].

¹⁸ Judicial Review Procedure Act 2016, s 16(3)(a).

• [23] In relation to his substantive error of law submission, the applicant notes first that the prosecution has the onus of proving that a charge has been laid within time.¹⁹ The corollary of that conclusion is that the issue is susceptible to a standard of proof. The prosecution has to prove that the charge was laid within time, either on the balance of probabilities, or beyond reasonable doubt. It is not simply some form of factual enquiry.

• [24] The applicant relies on s 25(c) of the Bill of Rights Act, the defendant’s right to be presumed innocent until proved guilty, and notes a reference by Elias CJ in R v Hansen to an academic suggestion that proof beyond reasonable doubt is “a corollary of the presumption of innocence”. ²⁰ Under the RMA there are significant penalties, based on strict liability and/or vicarious liability. This supports a standard of beyond reasonable doubt.

• [25] Mr Shamy says the standard of beyond reasonable doubt should extend to a procedural point like filing a charge within time. Limitation periods have an important role within our criminal justice system, existing to ensure that the prosecution has sufficient time to investigate and prosecute offending, so that criminal conduct does not go unpunished, but also to ensure that the time available to the prosecutor is not unduly protracted. Limitation periods are important because they provide certainty.

• [26] The Courts should accordingly take a strict attitude towards limitation periods requiring that they are made sure, by the prosecution, that there was compliance with the limitation period. A failure to file a charging document in time is not simply a “defect, irregularity, omission or want of form” that can be cured by s 379 of the CPA.²¹

• [27] Here, there is no provision in the RMA that would allow the Council to apply to extend the limitation period. The applicant refers by analogy to Summit Wool

¹⁹ Wislang v Rodney District Council North Shore District Court CRN 7044004690, 7 May 1997 as cited at [7] of the First Decision.

²⁰ R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [30], fn 54. The reference was to Kokott, The Burden of Proof in Comparative and International Human Rights Law (1998). The Chief Justice said “[i]t is not necessary for present purposes to consider [the point]”.

²¹ Hall v Ministry of Transport [1991] 2 NZLR 53 (CA) at [57]; Wainhouse v Police HC Auckland CRI-2009-404-68, 19 October 2009, Lang J at [14]; and Talley’s Group Limited v Worksafe New Zealand [2018] NZCA 587 (CA) at [45].

Spinners Limited v Department of Labour,²² which concerned the Health and Safety in Employment Act 1992 (HSEA). The HSEA specified four criteria for granting an extension of the time for filing an information. Justice Asher said:²³

The six-month time limitation is there for a purpose. It is to ensure that employers are not exposed to claims for unduly lengthy periods of time. The right period of time has been set by Parliament at six months. That limitation should be fundamental to the way in which the Department operates. Its investigations should be tailored to ensure that the necessary work is done before the expiration of the six month period. The fact that the object of the Act is the prevention of harm in the workplace does not mean the requirements of s 54D are in some way watered down.

• [28] In Summit Wool Spinners the Judge considered the onus was on the Department of Labour to satisfy the Court on the balance of probabilities that the criteria for an extension of time were made out.

• [29] While Mr Shamy notes that the case is distinguishable because it concerned an application for extension of time, in his submission in the present case, the Court is dealing with a more fundamental issue – that is, how to determine whether the prosecution has complied with its obligation to file the charge in time.

• [30] The applicant’s alternative argument is that the Crown needed to prove compliance with the filing time on the balance of probabilities.

• [31] Even on that test, the applicant says, the District Court erred in law. The Judge commented that, in terms of charges 4 and 5, the matter was “finely balanced”, but found for the Crown.²⁴ If the onus was on the balance of probabilities and the Judge was 50/50 on it, Mr Shamy says it required the Court to rule in favour of Mr Gifford.

• [32] Mr Shamy also notes the Judge’s reference to “whether there is sufficient information to establish the likelihood of the commission of the offence” as suggesting at least that the test was on the balance of probabilities.²⁵

²² Summit Wool Spinners Limited v Department of Labour [2007] NZHC 1852; [2008] NZAR 19 (HC).

²³ At [72].

²⁴ First Decision, above n 2, at [116].

²⁵ First Decision, above n 2, at [116].

• [33] The applicant says, in relation to charge 2, that it is not clear whether the District Court exercised any standard of proof at all. The Judge made a factual finding, that the potential of leachate to enter the stream was “too remote to be considered a possibility of the 6^th of May 2016”.²⁶

Relief

• [34] If the Court is satisfied that the process has gone wrong in the lower court because of the standard of proof adopted, or not adopted, then a refusal to grant a remedy would have “dire consequences” for the applicant, in that he would be required to go through a judicial process that might ultimately be found to have been illegitimate. Accordingly, the decision of the District Court ought to be quashed, the charges found to be out of time and the prosecution in relation to those charges halted.

Second respondent

Decision not amenable to judicial review

• [35] The Crown opposes the application.²⁷ Ms Johnston, counsel for the second respondent, says first that the challenged decision is not amenable to judicial review. Parliament has expressly decided not to give a right of appeal to an unsuccessful defendant following a refusal to dismiss a charge under s 147. The proper approach, if a defendant considers a Judge has erred in a s 147 decision, is to proceed to trial and, if convicted, appeal that conviction.

• [36] The applicant is attempting through this application to bypass the carefully crafted appeal pathways in the CPA. The second respondent submits that judicial review of a criminal pre-trial decision is available only in exceptional circumstances, where there is a risk of a miscarriage of justice, unable to be remedied on appeal.

• [37] The second respondent relies on DGN v Auckland District Council, where the High Court struck out an application for judicial review where the applicant sought

²⁶ At [96].

²⁷ As is usual, the first respondent, the District Court, abides the decision of the Court.

orders quashing the decision to charge him.²⁸ DGN contained a comprehensive assessment of the appropriateness of judicial review of pre-trial decisions in light of the “major overhaul of criminal procedure” brought about by the enactment of the CPA. In that case Simon France J ultimately considered the proceedings were an inappropriate use of judicial review.²⁹

• [38] That position has been confirmed in a number of recent cases, including Angus v District Court,³⁰ and in Bennett v District Court.³¹

• [39] The Crown says, that, as in the cases cited, Mr Gifford seeks to use judicial review to create an appeal right where none is available under the CPA. The Crown says this case is far from exceptional: there is no extreme affront to the justice system,³² and there is no risk of injustice that cannot be corrected on appeal. This Court should not entertain the judicial review application.

Error of law

• [40] The Crown says, too, that there is no error of law in the standard of proof applied to the time-bar.

• [41] Section 338(4) of the RMA places a limitation period of six months from the date on which the contravention giving rise to the charge first became known, or should have become known, to the Council.

• [42] For the Court to have jurisdiction, the Judge must be satisfied the charges were brought in time. He or she must decide at which point the contravention should have been known to the prosecuting authority. That calls for a judicial evaluation and is not, the Crown says, an issue amenable to a standard of proof.

²⁸ DGN v Auckland, Manukau, Papakura and Waitakere District Courts [2015] NZHC 3338, [2018] NZAR 137.

²⁹ At [38].

³⁰ Angus v District Court [2017] NZHC 2879, [2018] NZAR 1804 at [23].

³¹ Bennett v District Court [2020] NZHC 1730.

³² Bennett, above n 31, at [33]-[34].

• [43] The standards of balance of probabilities or beyond reasonable doubt are the standards applied by fact finders. Where Judges are called to make judicial decisions of whether a standard is met, it is inapt to apply notions of the burden and standard of proof: R v Leitch.³³ There, the Court of Appeal said “[t]he need to be ‘satisfied’ calls for the exercise of judgment by the sentencing Court... it is inapt to import notions of the burden of proof and of setting a particular standard.”³⁴ The Court also noted: “The phrase ‘is satisfied’ means simply ‘makes up its mind’ and is indicative of a state where the Court on the evidence comes to a judicial decision.”³⁵

• [44] Similarly, in D’Esposito v Ministry for Primary Industries, a fisheries prosecution, the Court of Appeal stated:³⁶

There is no need for the issue [of what satisfied means] to be relitigated with a view to introducing into its application complicating notions of burdens or standards of proof.

• [45] It is plain, the Crown says, that the same argument advanced by Mr Gifford here has been thoroughly considered by the Court of Appeal and rejected.

• [46] In the present case, the Court was required to undertake a value judgement or judicial determination which required consideration of the Council’s knowledge as to whether leachate may enter water and when Council officers should have formed that knowledge. The Crown says that the context here was not so much what facts were established, but what conclusions could be drawn from them. This required consideration of the factual matrix and a judicial conclusion on those facts. It was not a decision amenable to a particular standard of proof. In that sense it is comparable to the situation in Leitch and D’Esposito.

• [47] The Crown also relies on Marlborough District Council v Babich Wines.³⁷ That case involved discharge of grape leachate and a core question for the Court was the date when the Council formed sufficient knowledge to trigger the start of a limitation. Judge Hassan held that the issue of whether the Council had the requisite

³³ R v Leitch [1998] 1 NZLR 420 (CA).

³⁴ At 428.

³⁵ At 428.

³⁶ D’Esposito v Ministry for Primary Industries [2019] NZCA 518 at [22].

³⁷ Marlborough District Council v Babich Wines Limited [2017] NZDC 23819 at [62]- [63].

knowledge did not turn on a particular evidential test, but rather what the Judge saw from the evidence. The phrase “factual matrix” demonstrates a decision-making process equivalent to the Judge deciding whether they are satisfied the charges were filed in time. In this case, the Crown says, Judge Harland heard the evidence and reached a decision whether the statutory limitation period was met. Her Honour was satisfied that the charges were brought in time. This was an orthodox exercise of the well-established “satisfaction” standard.

• [48] However, if this Court finds that a standard of proof is required, the balance of probabilities is sufficient. Preliminary facts are determined by the Judge as the arbiter of pre-trial matters and are decided on the balance of probabilities. The right to be tried without undue delay (s 25 Bill of Rights Act) is not directly engaged and does not require the application of the criminal standard of proof.

• [49] Only the elements of a criminal offence, being the actus reus and mens rea, need to be proved beyond a reasonable doubt.³⁸ The limitation period is not an element of the offence, as it does not go to either the actus reus or mens rea. It is a preliminary fact going to jurisdiction. Mr Gifford cites no authority for the proposition that limitation provides a defence to criminal charges. If the charges were not filed in time they are nullities, not charges that can be defended.

• [50] The Crown cites Police v Anderson and Thompson v R both of which held that preliminary facts need to be proved, by the prosecution, on the balance of probabilities.³⁹

• [51] A similar approach has been taken in cases dealing with questions of law such as propensity, proper procedure, and other circumstantial evidence. By way of example:

(a) In R v Guo,⁴⁰ the Court of Appeal held that the criminal standard of proof does not apply when asking whether evidence is admissible, as this is not an element of the charge.

³⁸ Thomas v R [1972] NZLR 34 (CA).

³⁹ Police v Anderson [1972] NZLR 233 (CA); Thompson v R (1989) 86 ALR 447 (HCA).

⁴⁰ R v Guo [2009] NZCA 612.

(b) In R v Aylwin,⁴¹ the Court of Appeal accepted, in the context of breath- screening tests for alcohol, that the Crown must prove, on the balance of probabilities, that the tests were properly administered.

(c) In New Zealand Police v Tamatea,⁴² in an appeal against conviction for offending under the Land Transport Act 1998, the High Court decided that whether a person was required to give a blood specimen, which was a required condition before the offence could occur, was “a condition precedent” and “only requires evidence on the balance of probabilities.”

• [52] The balance of probabilities standard has also been approved by the District Court in the limitation context in Worksafe NZ v Affco New Zealand Limited.⁴³ The District Court held that the prosecution must prove on the balance of probabilities that a charge was brought within a statutory limitation period. That decision refers to relevant Australian jurisprudence,⁴⁴ and the Court cited Police v Anderson in holding that the question of whether the charges were brought in time was subject to the civil standard.⁴⁵

• [53] The Crown also refers to Summit Wool Spinners Limited.⁴⁶ Although that case concerned the extending of a limitation period, the Court noted that the criminal standard of proof is not well-suited when the Court is considering multiple factors that are not capable of absolute proof.⁴⁷ When the Court is making decisions of this kind, the civil standard applies.⁴⁸ The Crown says Summit Wool Spinners Limited is relevant here because Judge Harland was asked to assess what Council officers knew or should have known, based on the evidence available at the time and incorporating a reasonable degree of institutional knowledge. As in Babich Wines, this requires an assessment of the factual matrix, incorporating inference and an assessment of

⁴¹ R v Aylwin [2008] NZCA 154 at [35].

⁴² New Zealand Police v Tamatea [2015] NZHC 369 at [4] and [10].

⁴³ Worksafe NZ v Affco New Zealand Limited [2017] NZDC 28796 at [35].

⁴⁴ At [13]-[27].

⁴⁵ At [35].

⁴⁶ Summit Wool Spinners Limited v Department of Labour, above n 22.

⁴⁷ At [28].

⁴⁸ At [29].

subjective knowledge. A criminal standard of proof would be poorly suited to this task; the civil standard was correctly applied.

• [54] The Crown also says that application of the balance of probabilities is not inconsistent with the Bill of Rights Act. Mr Gifford’s rights are protected by the requirement that the elements of the offence be proved beyond reasonable doubt. The filing of charges cannot threaten the right to be presumed innocent, as Mr Gifford suggests, as the presumption applies to all who are charged. That right requires the prosecutor to prove the criminal charge to the fact finder in the trial itself.

• [55] The trial process itself is where the defendant’s right to be presumed innocent until proven guilty is protected. A finding that the Court has jurisdiction to hear a charge does not affect the right to be presumed innocent. It simply allows the prosecution case to be heard on the merits.

• [56] The right to be tried without undue delay applies once a person is charged with an offence and does not extend to pre-charge delay.⁴⁹

• [57] Judge Harland posed the question before her as “whether there is sufficient information to establish the likelihood of the commission of an offence”.⁵⁰ While the Judge did not explicitly identify the standard of proof she was applying, referring to it variously as a question of “scale and degree”,⁵¹ and to the matter being “finely balanced”,⁵² she at least implicitly considered whether the evidence showed the charges were filed in time on the balance of probabilities. Either the “satisfaction” test or the balance of probabilities was applied. Therefore, the result in the case was correct and this Court does not need to grant relief.

• [58] The Crown accepts that it is important that prosecutors not be allowed to be careless with limitation periods, but says this is provided for by the inability of the Crown to extend the limitation period and the strict limitation period rendering a late charge a nullity. In that way, the rights of the defendant are balanced against the

⁴⁹ R v Williams HC Auckland CRI-2007-404-6, 10 August 2007 at [16].

⁵⁰ First Decision, above n 2, at [116].

⁵¹ At [116].

⁵² At [116].

powers of the state and the application of a beyond reasonable doubt standard is not required.

On the evidence the charges were filed in time

• [59] In any event, the second respondent says the evidence in relation to each of the three charges in question shows they were filed in time.

Charge 2

• [60] Charge 2 alleges that the leachate in the compost pile could enter the Pukapuka Stream as a result of natural processes.

• [61] Mr Gifford asserts that the Council formed actual or constructive knowledge that leachate may enter the Pukapuka Stream from the compost pile during a visit on 6 May 2016, when Council officers observed leachate ponding around the pile, to a depth of approximately 15 centimetres. Judge Harland found that this gave them the requisite knowledge that the leachate may enter groundwater from the compost pile and Charge 1 was therefore dismissed.⁵³

• [62] However, the Crown says, the situation was quite different as to whether leachate may enter the stream from the compost pile (Charge 2). Mr Gifford himself told Council officers at that time that the topsoil under the pooling had been removed, thus reducing the risk of runoff, the leachate was contained, the site sloped towards the road, away from the stream, and there was a natural spring nearby as well as recent rain, which made the leachate level appear greater than it actually was.⁵⁴ The leachate was contained by a bund that Mr Gifford had constructed and this was over 20 metres from the stream. There was no evidence that the leachate could escape the bund and enter the stream, there was no visible runoff and no adverse environmental effects were observed.⁵⁵

⁵³ First Decision, above n 2, at [67] and [95].

⁵⁴ First Decision, above n 2, at [68].

⁵⁵ First Decision, above n 2, at [69] and [96].

• [63] The next visit on 20 June 2016 followed a further complaint about water quality being lodged by Mr Gifford’s downstream neighbour, earlier that day.⁵⁶ Council officers took samples of the stream water and first formed the requisite knowledge that leachate may have entered the stream when the results from that water sampling were returned on 21 June 2016.⁵⁷ The samples showed substantial contamination that the Council considered was caused by leachate from the compost pile.

• [64] Thus, Judge Harland correctly found that the evidence demonstrated that the Council did not form actual or constructive knowledge of the potential for leachate to enter the stream from the compost pile at the 6 May 2016 visit. That finding was clearly correct on the evidence and, the Crown says, it is difficult to see how the application of a higher standard of proof (than applying judicial judgement or proof to the civil standard) would have resulted in a different outcome.

Charges 4 and 5

• [65] Charges 4 and 5 relate to the stockfeed pile on the far side of the stream. The stockfeed pile was first visited by Council officers on 1 April 2016, when they observed a small amount of grape marc mixed with sawdust and soil.⁵⁸ The pile was more than 20 metres from the stream and neither of the visiting Council officers formed any concerns about any leachate.⁵⁹

• [66] The second Council visit was on 12 April 2016, when officers were on the applicant’s property to inspect unrelated activity. They saw a small amount of dry grape marc, but did not recall seeing any leachate at all. They recalled that the area where the grape marc was stored was dry and they had no concerns.⁶⁰ A follow-up email from the Council to Mr Gifford noted that the marc was “in a good location” and reminded him to ensure that the marc was at least 20 metres from the stream, as

⁵⁶ First Decision, above n 2, at [78].

⁵⁷ First Decision, above n 2, at [97].

⁵⁸ These materials were added to absorb any leachate and minimise or eliminate the risk of contamination.

⁵⁹ First Decision, above n 2, at [103] and [104].

⁶⁰ First Decision, above n 2, at [106].

required by regulations.⁶¹ The Council could not have formed the requisite knowledge justifying prosecution as at 12 April.

• [67] The Council did not visit the stockfeed pile again until 29 June 2016. On 21 June 2016, officers became aware of leachate contamination in the Pukapuka Stream, but at that time considered it originated from the compost pile. On 22 June 2016, Mr Gifford advised Council officers that run-off from the stockfeed pile was running 40 to 60 metres into the stream.⁶² It was this new discharge of fresh grape marc, which occurred at some point between 12 April and 22 June 2016, that is the basis for the charge. On 29 June 2016 Council officers visited the stockfeed pile and saw the new grape marc. Therefore the Council’s knowledge crystallised, at the very earliest, on 21 June 2016 when the Council received the water analysis from the stream. On that date, the Council could extrapolate the evidence of contamination as coming from both or either of the stockfeed pile or the compost pile. The more likely date is 29 June 2016, when the Council saw that Mr Gifford had discharged additional fresh grape marc to the stockfeed pile. This is the discharge that is the basis of the charges relating to the stockfeed pile. The Crown says that regardless of when in June the knowledge was formed, the charges were filed in time.

• [68] Mr Shamy for Mr Gifford relies on the Judge’s phrasing of “finely balanced”⁶³ to submit that the evidence was split evenly down the middle, failing to satisfy even the civil standard. The Crown says, in response, that, based on the evidence, knowledge was clearly not formed until June 2016 and stating the case is finely balanced understates the strength of the Council’s case. In any event, “finely balanced” does not necessarily mean the evidence shows equal support on each side – it is not a technical legal term, rather it is a rhetorical device, meaning that there is evidence on both sides. The Crown says that here, it is clear from the context that the Judge considered the case for the stockfeed pile charges to be weaker than for the compost pile, but that ultimately the evidence for the Council’s case, if only just, demonstrated that the charges were filed in time.

⁶¹ First Decision, above n 2, at [107].

⁶² First Decision, above n 2, at [109]-[110].

⁶³ First Decision, above n 2, at [116].

• [69] Even if the civil standard of proof applies, it can be inferred that this is met. In percentage terms, the Judge may have considered the case was split as closely as 51/49

– “finely balanced” – but nevertheless falling in favour of the Council. That is all that is required on the balance of probabilities and the Judge did not make a reviewable error.

Relief

• [70] The second respondent says that this application falls significantly short of the exceptional standard required where judicial review of a pre-trial criminal decision should be allowed. There is no risk of miscarriage of justice that cannot be remedied on appeal. Rather, Mr Gifford seeks to use judicial review as an ancillary attack on a decision for which he does not have a right of appeal. No relief should be granted.

• [71] If the Court considers that the District Court did err, the usual process would be for the decision to be referred back to the original decision-maker. That should be the course of action here.

Analysis

Is the decision amenable to judicial review?

• [72] In the strike-out judgment, Isac J declined to strike out the applicant’s application on the basis of abuse of process, on the grounds that judicial review was not clearly precluded on the relevant provisions of the CPA; given there was no statutory bar, it was incorrect to describe it as an abuse of the Court’s process; the more appropriate procedure to advance the argument that the claim was clearly untenable was a summary judgment application, rather than as an abuse of process; the criticism of a judicial review application where an appeal may be available later goes to the question of relief rather than jurisdiction; and there is a question of law worthy of consideration at trial.

• [73] Ms Johnston concedes that there is an overlap between the Crown submissions in the strike-out application and her submission in this case, but says there is a threshold difference. Justice Isac was required to be satisfied that the application for

judicial review was an abuse of process. He held that threshold was not met. It remains open for the Crown to make submissions on the limited availability of judicial review in the context of the CPA.

• [74] The starting point is that CPA does not completely oust the judicial review jurisdiction of the High Court; pre-trial decisions of the District Court remain amenable to judicial review and the existence of appeal rights does not preclude judicial review.⁶⁴ But the CPA does narrow the scope for judicial review: the power must be used sparingly,⁶⁵ judicial review is appropriate “only in rare cases” where “the intervention of the High Court is imperative.”⁶⁶

• [75] It is relevant that there is no right of appeal for an unsuccessful defendant following a refusal to dismiss a charge under s 147. The right of appeal, couched in discretionary terms, is exercisable only by the prosecutor following a decision to dismiss a charge.⁶⁷

• [76] In DGN v Auckland District Court,⁶⁸ Simon France J considered the authorities on the appropriateness of judicial review of pre-trial decisions and noted that the introduction of the CPA reinforced the existing reluctance of the Courts to allow judicial review to interrupt the conduct of criminal prosecutions. Compelling reasons are required.⁶⁹

• [77] The scheme of the CPA represents a legislative assessment of an appropriate scheme which affords avenues of challenge and appeal in what Simon France J considered to be the fair and appropriate points in the process.⁷⁰ Judicial review is not a way to circumvent that scheme.⁷¹ As Simon France J noted:⁷²

The use of judicial review as an alternative route carries significant potential to undermine this scheme, and is one of the reasons why, in my view, a compelling reason should now be required before judicial review is allowed.

⁶⁴ Judicial Review Procedure Act 2016, s 16(3).

⁶⁵ Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 136.

⁶⁶ At 136.

⁶⁷ Criminal Procedure Act 2011, s 296(3)(b).

⁶⁸ DGN v Auckland, Manukau, Papakura and Waitakere District Courts, above n 28.

⁶⁹ At [29].

⁷⁰ At [32].

⁷¹ At [31].

⁷² At [32].

• [78] In Angus v District Court,⁷³ the High Court emphasised that the power to review will require “truly exceptional” circumstances before being used in s 147 cases, even if an identifiable question of law arises. Subsequently, in Bennett v District Court, the High Court held that, if an alleged error could be challenged through an appeal against conviction, judicial review can be brought of a pre-trial decision “only in exceptional circumstances”.⁷⁴

• [79] I have reached the view that this is not one of those exceptional or rare cases justifying the exercise of the judicial review jurisdiction. There is no “extreme affront to the justice system” as there was in Bennett.⁷⁵ Nor is there any risk of injustice that cannot be corrected on appeal. I agree that the applicant has not discharged the onus of showing that his case is exceptional and rare.

Error of law: was the Court required to apply a standard of proof in reaching its decision? If yes, what is the correct standard?

• [80] Notwithstanding my finding that this case is not amenable to judicial review, I have gone on to consider whether there was an error of law in the District Court’s approach to the standard of proof.

• [81] It is not in dispute that the Crown has to establish that the charges were brought in time.⁷⁶

• [82] The question the Judge had to answer was whether the charges had been brought within the period specified in s 338(4) of the RMA. That in turn required the Court to ascertain when the contravention giving rise to the charge first became known, or should have become known, to the local authority or consent authority.

• [83] That is essentially a factual analysis and a judicial conclusion on those facts. It is not, in my view, a situation where the concepts of burden and standard of proof apply.

⁷³ Angus v District Court, above n 30, at [23].

⁷⁴ Bennett v District Court, above n 31, at [29].

⁷⁵ At [33]-[34].

⁷⁶ Wislang v Rodney District Council CRN-7044004690, 7 May 1997 at 3 as cited in First Decision,

above n 2, at [7].

• [84] The Court of Appeal in R v Leitch considered s 75(2) of the Criminal Justice Act 1985, which provided that the High Court:⁷⁷

... if it is satisfied that it is expedient for the protection of the public that an offender to whom this section applies should be detained in custody for a substantial period, may pass a sentence of preventive detention.

• [85] The Court of Appeal said:⁷⁸

The need to be ‘satisfied’ calls for the exercise of judgment by the sentencing Court. It is inapt to import notions of the burden of proof and of setting a particular standard, eg beyond reasonable doubt. As this Court said in R v White, with reference to s 75(2): “The phrase ‘is satisfied’ means simply ‘makes up its mind’ and is indicative of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification...”.

• [86] Similarly, in D’Esposito, the term “satisfied” was used twice in s 234(2) of the CPA, first to govern the degree of conviction the Judge must have in relation to the requirements specified in both s 234(2)(a) and (b) and, second, in reference to the particular issue in paragraph (b) whether the findings of the trial Judge in relation to the offence necessarily encompass factual findings which prove the substituted offence. The argument for the appellant in that case was that the word “satisfied” raised a question of general or public importance [justifying an appeal] because on the two occasions it was used in s 234(2) it meant “satisfied beyond reasonable doubt”.⁷⁹

• [87] The Court’s starting point for consideration of the meaning of “satisfied” was the decision of the Court of Appeal in A (CA) 255/2009 v R, which held that there was no reason to depart from the well-established view that:⁸⁰

... the word ‘satisfied’ in legislation invites a Judge to undertake an evaluation of all relevant matters and reach a judgement as to whether or not he or she is satisfied.

⁷⁷ R v Leitch above, n 33.

⁷⁸ At 428.

⁷⁹ D’Esposito v Ministry for Primary Industries, above n 36, at [14].

⁸⁰ A (CA) 255/2009 v R [2009] NZCA 380 at [10] as cited in D’Esposito v Ministry for Primary Industries, above n 36, at [17].

• [88] The Court of Appeal repeated that what the Judge is required to do when s 234(2) of the CPA speaks of being “satisfied” is to carry out a judicial evaluation or undertake an exercise of judgement.⁸¹

• [89] Similarly, in Marlborough District Council v Babich Wines, where Judge Hassan held that the issue of whether the Council had the requisite knowledge did not turn on a particular evidential test, but rather what the Judge saw from the evidence.⁸²

• [90] Mr Shamy is correct that the cases relied on by the Crown in respect of this point concerned legislation which specifically required the Court to be “satisfied” and s 338(4) of the RMA does not use that language. Nevertheless, I consider that the substantive analysis in those cases applies equally to this situation. It is implicit in s 338(4) of the RMA that the Judge must have been “satisfied” as to when the contravention giving rise to the charge first became known or should have become known to the Council. As in R v Leitch, that process required a factual analysis followed by an exercise of judgement.

• [91] I agree with the Crown that the Judge’s conclusion, having considered the factual matrix, was not a decision that is amenable to a particular standard of proof.

• [92] If I am wrong in my conclusion that a standard of proof does not apply to the question in issue, I conclude that the balance of probabilities is the appropriate standard, for the following reasons.

• [93] I accept the Crown submission that other cases dealing with questions such as propensity, proper procedure and other circumstantial evidence are analogous.

• [94] It is only the elements of a criminal offence, the actus reus and mens rea, that need to be proved beyond a reasonable doubt.⁸³ The standard of proof in a criminal case applies to the end result which the jury must reach and not the individual elements of each strand of the evidence.⁸⁴ The limitation period is a preliminary fact, going to

⁸¹ At [20].

⁸² Marlborough District Council v Babich Wines, above n 37, at [62]-[63].

⁸³ Thomas v R, above n 38.

⁸⁴ R v Guo, above n 40, at [49].

jurisdiction, not an element of the offence. It does not go to either the actus reus or the mens rea, nor is it a defence to criminal charges. As the Crown observes, if the charges were not filed in time, they are nullities, not charges that can be defended.

• [95] Police v Anderson and Thompson v R are both authorities for the proposition that preliminary facts need to be proved, by the prosecution, on the balance of probabilities.⁸⁵ In Anderson, the preliminary fact in question was whether the traffic officer had “good cause to suspect” the commission of the offence while investigating the defendant. The Court of Appeal held this question was not an element of the charge and the Judge only needed to be satisfied on the balance of probabilities that this factor was proved.⁸⁶ What was at issue in Thompson was the standard required for proof of facts that went to jurisdiction, in particular in which state the offending occurred. The High Court of Australia held that the balance of probabilities was the appropriate standard.

• [96] Nor, in my view, is the application of the balance of probabilities standard inconsistent with Mr Gifford’s rights under the Bill of Rights Act. Those rights are protected by the requirement that the elements of the offence be proved beyond reasonable doubt. The right to be presumed innocent is not compromised by the application of the balance of probabilities test. As the Crown notes, the filing of charges does not threaten that right – the presumption of innocence applies to all who are charged. The right requires the prosecutor to prove the criminal charge to the decision-maker in the trial.⁸⁷ The defendant’s right to be presumed innocent until proved guilty is protected through the trial process itself.

• [97] It would be, as the Crown submits, a radical change to the criminal law if the beyond reasonable doubt standard of proof was to be extended to procedural or jurisdictional matters.

• [98] While the Judge did not expressly identify the standard of proof being applied, it is implicit that she did apply either the “satisfaction” test or the balance of

⁸⁵ Police v Anderson, above n 39; and Thompson v R, above n 39.

⁸⁶ At 242-243.

⁸⁷ R v Guo, above n 40, at [49].

probabilities. The Judge referred to it as a question of “scale and degree”,⁸⁸ and to the matter being “finely balanced”.⁸⁹ There is no magic in the use by the Judge of that phrase. In context, I conclude it was not used as a technical legal term but rather (as the Crown contends) a rhetorical device, meaning that there is evidence on both sides. There is sufficient in the Judge’s analysis to conclude that she was or would have been satisfied on the civil standard of proof.

Was the Judge correct on the facts?

• [99] Finally, I agree with the Crown’s submissions that the judgment – which comprehensively sets out the facts and an analysis of the facts – showed a clear basis for Judge Harland’s conclusion that the charges were filed within time. Even if Mr Gifford were correct that the beyond reasonable doubt standard of proof applies, it is difficult to see that applying that standard would have resulted in a different outcome in relation to charge 2.

• [100] In relation to charges 4 and 5, as I have noted, I do not consider that the reference to “finely balanced” was a technical term but nevertheless, it would satisfy the standard of balance of probabilities.

Result

• [101] The application for judicial review is declined.

Costs

• [102] I have found for the second respondent and, in the normal course, he is entitled to costs. Costs on a 2B basis are appropriate. I expect the parties should be able to agree costs but if that is not possible the second respondent should file submissions within 15 working days of the issue of this judgment and the applicant should respond within a further 15 working days. Submissions should not exceed five pages.

Gwyn J

⁸⁸ First Decision, above n 2, at [116].

⁸⁹ First Decision, above n 2, at [116].