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Court of Appeal of New Zealand |
Last Updated: 24 January 2018
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IN THE COURT OF APPEAL OF NEW
ZEALAND
BETWEEN JAMES EDWARD MCNALLY
Appellant
AND THE ATTORNEY-GENERAL OF NEW ZEALAND ON BEHALF OF THE
MINISTRY OF FISHERIES
First Respondent
AND THE DISTRICT COURT AT NAPIER
Second Respondent
AND ESPLANADE NO 3 LIMITED
Third Respondent
AND STEPHEN GRAHAM HARVEY
Fourth Respondent
Hearing: 14 October 2010
Court: O'Regan P, Arnold and Harrison JJ
Counsel: P N Ross and J W A Rainger for
Appellant
J Pike and C R J Fleming for
Respondents
Judgment: 30 November 2010 at 2.30 pm
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JUDGMENT OF THE COURT
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REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1] The appellant, Mr McNally, was suspected of selling crayfish in breach of the Fisheries Act 1996. Fisheries officers seized a vehicle he was believed to have used in the commission of the offences under s 207(1)(a) of the Act. Section 207(4) requires that where property is seized, the decision whether to lay an information or charge for the alleged offence “shall be made as soon as reasonably practicable after the property is seized”.
[2] The decision to prosecute the appellant was made approximately eight months after fisheries officers seized the vehicle. In the District Court, the appellant sought a stay, on the ground that the prosecuting authorities had not complied with s 207(4). Judge Rea granted the application, considering that he was bound by the decision in Grigson v Ministry of Fisheries,[1] in which Giles J held that where the decision to prosecute was not made as soon as reasonably practicable after seizure, the defendant was entitled to have the proceedings stayed.[2]
[3] The Attorney General, on behalf of the Ministry of Fisheries (the Ministry), applied for judicial review of the District Court’s decision. Miller J granted the application, quashing the order for a stay and remitting the matter back to the District Court.[3] In doing so, he disagreed with Grigson.[4] Mr McNally now appeals to this Court.
[4] For the sake of completeness, we note that the third and fourth respondents are respectively the owner and the skipper of a vessel suspected of unlawful fishing. The vessel was seized and they were later charged with offences against the Act. They also alleged that the requirements of s 207(4) were not complied with, and Judge Rea stayed their prosecutions as well. They did not take an active part in the present appeal but advised through their counsel, Mr Sullivan, that they support the submissions made on behalf of Mr McNally. Accordingly, their cases stand or fall in accordance with our decision in relation to Mr McNally.
Factual background
[5] The following statement of facts is taken substantially from the judgment of Judge Rea.
[6] On 4 September 2007, a fisheries officer was advised that a person driving a Toyota RAV 4 had sold crayfish to staff at a liquor outlet in Napier. Fisheries officers immediately began an inquiry, examining phone records, checking video surveillance footage, interviewing witnesses and undertaking a surveillance operation. On 9 November 2007 they interviewed Mr McNally, who admitted that he had sold crayfish to staff members at the liquor outlet. On the same day, they seized the Toyota vehicle. It was owned by a third party, Mr McKenzie. The vehicle was immediately released to Mr McKenzie under bond.[5]
[7] On 28 January 2008, fisheries officers continued their investigations by asking staff at the liquor outlet to look at a photo montage to see whether they could identify the person who had sold them the crayfish. They picked out the photo of Mr McNally.
[8] By 5 February 2008, the investigation was concluded and the file was ready for review by the District Compliance Manager. On 10 March 2008, that review having been completed, the file was sent to the local Crown Solicitor’s office for a decision as to whether there was a sufficient case to prosecute. Unfortunately it was not until 8 July 2008 that the Crown Solicitor’s office confirmed that Mr McNally could be prosecuted. This led to informations being laid on 28 July 2008. The period of time between the seizure of the vehicle (9 November 2007) and the decision to prosecute (8 July 2008) was eight months.
Statutory background
[9] We will summarise the effect of relevant provisions of the Act. For ease of reference, the full text of those provisions is set out in the annexed appendix.
[10] Under s 207(1) fisheries officers have the power to seize (among other things) items that they believe on reasonable grounds have been used in the commission of offences against the Act. Any such items must be delivered into the custody of the Ministry’s chief executive.[6] As we have said, where property is seized, s 207(4) requires a decision whether to lay an information or charge in relation to the alleged offending to be made “as soon as reasonably practicable after the property is seized”. This is against the background that, generally, prosecutions under the Act must be brought within either 12 months or two years of the date of the alleged offending depending on the maximum penalty[7] rather than the six months that generally applies under the Summary proceedings Act 1957.[8]
[11] Seized property is to be held in the Crown’s custody until either a decision is made not to prosecute or a prosecution is completed and the property is disposed of (assuming an order for forfeiture is made).[9] However, this is subject to the chief executive’s power, at any time before a prosecution is commenced, to release the property under bond.[10] Where property is released under bond, it is subject to a statutory condition,[11] as well as to any other conditions that the chief executive specifies. As we have noted, the chief executive exercised his power to release the vehicle on bond in this case.
[12] Seized property must be released from the Crown’s custody if a decision is made not to prosecute or if any prosecution is unsuccessful.[12] Further, where a decision to prosecute has been made, the Court has the power to order release of the property on application by the person from whom it was seized or its owner.[13] The Court may order release subject to sureties or conditions.
[13] Accordingly, in relation to seized property the decision whether or not to prosecute is important for two reasons:
(a) If a decision is made not to prosecute, the seized property must be released from the Crown’s custody.
(b) If a charge or information has been laid, the person from whom the property was seized or its owner may apply to the Court for its release.
The requirement in s 207(4) that a decision to prosecute or not be made as soon as reasonably practicable after seizure must be seen against this background. The need for expedition reflects the fact that property rights are being interfered with without the prior authorisation of an independent person such as a judicial officer.
Decisions in the Courts below
[14] Judge Rea found that the delay between the time of seizure and the decision to prosecute was excessive. Given that Mr McNally had made admissions, any further investigation was aimed essentially at buttressing them. The case was, the Judge said, “very basic” and “standard”.[14] Accordingly, the Judge found, the decision to prosecute had not been made as soon as reasonably practicable after the seizure, as required by s 207(4).
[15] While it is undoubtedly correct that, overall, the delay was excessive in this case, we note that some time was taken up by the internal review process operating within the Ministry. Such processes are established for good reason and the courts should not discourage their use, inadvertently or otherwise. As we see it, the principal difficulty in this case was the four month period taken to process the file within the Crown Solicitor’s office, which was on any view excessive.
[16] Having reached this conclusion, Judge Rea considered that he was bound by the decision in Grigson to grant a stay. The Judge did not consider that the delay was prejudicial to, or impacted adversely on, Mr McNally. He said that it would have no impact on the way Mr McNally would present his case at trial, nor did it mean that he would not receive a fair trial.[15] However, as Giles J had said in Grigson that prejudice to the person charged was irrelevant,[16] Judge Rea placed no weight on it when considering how he would address the delay. Moreover, the Judge gave no weight to the fact that the Toyota vehicle had been bonded back to its owner (not Mr McNally) immediately after seizure, again because Giles J had held in Grigson that that was an irrelevant consideration.[17] It seems from the tenor of his observations that the Judge may not have issued a stay had he not been bound by Grigson.
[17] Miller J refused to follow Grigson. His conclusion is summarised in the following extract from his judgment:[18]
Turning to this case, I conclude that the Judge erred in law by holding that a stay followed almost automatically once he found that the decision to prosecute was not made as soon as reasonably practicable. Contrary to Mr Logan’s submission, he did not approach the decision on the basis that he could take all relevant considerations into account. He reasons rather that he could not take into account any lack of prejudice to the defendants, or the fact that the property was immediately bonded back after seizure, or the absence of any impact on fair trial rights. Each of those things is a relevant consideration that the Judge identified but ignored. He cannot be faulted for that, of course, because he followed Grigson. However, I respectfully depart from Giles J’s opinion that a stay is the means by which compliance with (now) s 207(4) is to be encouraged. That approach treats a stay as a near-automatic consequence, and so requires the Court to discount considerations that the legislation implicitly treats as relevant; the return of property under bond and the presence or absence of prejudice to the accused.
Basis of appeal
[18] Mr Ross made a number of points on behalf of the appellant. Essentially they related to Grigson and the legitimacy of stay as a remedy for breach of s 207(4) and to retrospectivity.
[19] As to the former, while he accepted that a stay is not the usual remedy for delay, Mr Ross said that this was not simply a matter of delay – it was “defiance of a mandatory provision enacted by Parliament as a counterbalance to an extraordinary level of administrative power”. Mr Ross seemed to accept that a stay was not the only remedy available in a case such as this, but submitted that it was the “preferred” remedy. He submitted that delay in such cases, this one in particular, involved egregious prosecutorial misconduct, so that the effect on defendants was irrelevant. In this context, he referred to s 136(1) of the Land Transport Act 1998, which empowers a court to dismiss a charge for unreasonable delay in instituting proceedings if it is satisfied that the person charged has been prejudiced in his or her defence by the delay. However, no such requirement is built into s 207(4).
[20] Mr Ross submitted that Giles J in Grigson had given proper effect to the requirement for expedition in s 207(4) when he concluded that the prosecution should have been stayed. He said that breaches of the provision must attract a sanction that encourages compliance.
[21] In relation to retrospectivity, Mr Ross submitted that Judge Rea had applied the law correctly as it stood at the time he made his decision. Accordingly, it could not be said in the context of an application for judicial review that he had made an error of law. To accept such an argument, he said, would be to apply the law retrospectively, which was abhorrent in the context of liability for offending. Mr Ross relied in particular on Kleinwort Benson Ltd v Lincoln City Council.[19]
Discussion
[22] We begin with Grigson. It was decided under earlier legislation, the Fisheries Act 1983 (the 1983 Act), but the relevant provision, s 80(7), had the same wording as s 207(4).[20]
[23] In Grigson the appellant was convicted of various offences under the 1983 Act. Because he had used it in connection with the offending, his Isuzu truck was directed to be forfeited to the Crown. The appellant appealed against his convictions, on the basis that the Judge had wrongfully refused to stay the prosecution. One of the grounds on which he argued the Judge should have stayed the prosecution was the Ministry’s non-compliance with s 80(7), the decision to prosecute having been made 19 months after the seizure of the truck. Giles J allowed the appeal on this ground.
[24] Giles J summarised his conclusions on the law in the following passage:[21]
I therefore conclude that s 80(7) requires the Ministry to decide as soon as reasonably practicable after seizure of property whether or not to lay an information. Once that decision has been made it must obviously be communicated to the person concerned. It matters not that in the meantime the property seized may have been returned under bond. The act of seizure is the trigger and the Ministry must satisfy the Court, on an objective test, that the decision to proceed to lay charges has been made as soon as reasonably practicable after seizure. The date of laying informations is not determinative of that issue. If the Ministry fails to so comply the Court is entitled to grant a stay or to dismiss a prosecution. It is not necessary for a defendant to establish prejudice by reason of delay. The circumstances justifying stay or dismissal arise not from institutional delay on the part of the Courts as is the case in Martin v Tauranga District Court [1995] 2 NZLR 419 and other similar authorities ... It arises rather from a deliberate act or failure to act on the part of the prosecuting authority. Parliament must have intended that there be some consequence for breach of s 80(7); in my view, the denial of a right to proceed with prosecution is the means by which compliance is to be encouraged.
(Emphasis added.)
[25] The Ministry had sought to explain the delay by reference to the press of other matters and a lack of resources. While the Judge accepted that “a degree of sensible flexibility”[22] should be accorded to the Ministry, and that there was an explanation for the delay, the decision to prosecute was not made as soon as reasonably practicable and, as a consequence, a stay should have been granted.[23]
[26] In the passage quoted above, Giles J said that the Court was entitled to grant a stay in a case where the Ministry failed to comply with its timing obligation. As Mr Pike accepted, that is undoubtedly correct – a stay is an available remedy in such situations. But the key to Giles J’s decision appears to be the italicised portion in the passage. Having said that Parliament must have intended that there be some consequence where the requirements of s 80(7) were not met, the Judge identified the denial of the right to proceed with the prosecution as the means by which compliance was to be encouraged. The Judge did not tie this to the facts of the particular case but rather seems to have stated a general principle and treated the granting of a stay as a necessary rather than simply an available response to prosecutorial delay. Certainly, this is the way that Judge Rea interpreted it.
[27] However, Giles J did not explain why staying the prosecution should be the only remedy in cases where the prosecution had not complied with its obligations under s 80(7). The requirement for expedition is an important obligation with which the Ministry is expected to comply. But it is difficult to see why a breach of it must in every case lead to a stay of the relevant prosecution. As Mr Pike said, s 207(4) is not concerned with trial rights but rather with property rights. In the present case, Mr McNally was not the owner of the property seized and does not suggest that his property rights were affected by the seizure.
[28] As Mr Pike noted, the principles applying to the exercise of the power to stay proceedings have developed principally in the context of claims alleging abuse of process[24] and breaches of the right to be tried without undue delay.[25] Where this right is infringed, however, a stay is not the usual remedy, as the Supreme Court made clear in R v Williams.[26]
[29] The Court in Williams noted that the right to be tried without undue delay may be infringed even though the defendant is not able to demonstrate any particular prejudice in terms of defending the charge(s).[27] This was one of the reasons that “a stay is neither a mandatory nor a usual remedy for undue delay”.[28] The Court said that any remedy for such undue delay had to be a “reasonable and proportionate” response.[29] The Court went on:[30]
Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a court to do so.
In other situations remedies such as a reduction in sentence would be reasonable and proportionate responses to the delay.[31]
[30] One reason that a stay is not the usual remedy for delay is its effect. As Miller J noted, a stay is tantamount to an acquittal otherwise than on the merits.[32] Accordingly, as a remedy it will often be disproportionate to the wrong, particularly where the defendant suffers no prejudice as a result of the delay. Such disproportionality is likely to be marked in a case such as the present where neither Mr McNally’s trial rights nor his property rights are engaged.
[31] Moreover, there are other remedies where there has been non-compliance with s 207(4) which are directed more specifically to the property interests that s 207(4) seeks to recognise. For example, where a prosecution is commenced, the owner of property which has been seized has the right to apply to the court for its release. There seems to be no reason why the court should not take undue delay in making the decision to prosecute into account in that context, although, as Miller J pointed out, this is an incomplete remedy as it is not available during the period of undue delay.[33] Sentence reduction is available and there may also be other remedies outside the Act.[34] Finally, we agree with Miller J that while the fact that property is immediately released on bond to its owner does not excuse delay, it does to some extent mitigate the effect of any delay as the owner has the use of the property. We say “to some extent” because we accept that the bonding process does place some restrictions on the owner’s freedom to exercise his or her proprietary interests.
[32] A further factor which indicates that a stay should not be the automatic response to a breach of s 207(4) is that it is the decision to lay an information or charge that stops time running, not the actual laying of the information or charge. Accordingly s 207(4) seems to be directed at promoting prompt decision-making rather than prompt conduct of any resulting proceedings.
[33] In the result, then, we agree with Miller J that to the extent that Grigson treated the granting of a stay as the automatic or almost automatic response to a prosecution which the Ministry undertakes after having failed to meet its obligations under s 207(4), it was wrongly decided.
[34] This leaves the argument advanced by Mr Ross that judicial review should not have been granted because, at the time he made his decision, Judge Rea was acting in accordance with the law as reflected in Grigson. To hold that because Grigson was wrong, Judge Rea was wrong would be to apply the law retrospectively, he submitted, and to adopt the so-called “declaratory” theory of law which has long since been debunked. If the approach advocated by the Ministry was adopted, it would be impossible for people to rely on existing case law in planning their affairs.
[35] This is not the occasion to embark on a jurisprudential discussion of different theories of judicial decision-making. We accept that Judge Rea stayed Mr McNally’s prosecution because he considered that he had no alternative in light of Grigson. We also accept that the Judge was right in interpreting Grigson in the way he did. But, as we have said, we consider that Grigson was wrong as a matter of law. Accordingly Judge Rea made an error of law, even though his decision was one that he was obliged to make. Miller J was not bound by the decision of Giles J and was entitled to conclude that his decision was based on an error of law.
[36] We agree that injustice can arise where, for example, citizens act on the basis of legal advice that accurately reflects existing judicial decisions but are later prosecuted for their actions on the basis of subsequent decisions which change the law. Where errors of law are officially induced in this or similar ways, the courts may well consider mechanisms to protect those affected.[35] But self-evidently, no such issue arises here: Mr McNally simply seeks to take advantage of a prosecution lapse that caused him no material prejudice and, in that context, relies on Grigson, a decision that we consider to be wrong. As we see it, there is no principle which requires that he be protected from prosecution or liability in such circumstances.
[37] In the result, then, we consider that Miller J was right not to follow Grigson and to allow the application for review.
Decision
[38] The appeal is dismissed. The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Crown Law Office,
Wellington for Respondents
APPENDIX
Provisions relating to seizure
207 Powers of
seizure
(1) A fishery officer may seize—
(a) any vessel, vehicle or other conveyance, fishing gear, implement, appliance, material, container, goods, equipment, or thing which he or she believes on reasonable grounds is being or has been or is intended to be used in the commission of an offence against this Act:
(b) any fish, aquatic life, or seaweed which he or she believes on reasonable grounds are being, or have been, taken, killed, transported, bought, sold, or found in the possession of any person, in contravention of this Act; or any fish, aquatic life, or seaweed with which such fish, aquatic life, or seaweed have been intermixed:
(c) any article, record, document, or thing which he or she believes on reasonable grounds is evidence of the commission of an offence against this Act.
(2) Any property seized under subsection (1) shall be delivered into the
custody of the chief executive.
(3) Any documents to which section 198A of the Summary Proceedings Act 1957
applies that are seized by a fishery officer under this
section shall be dealt
with in accordance with section 198A of that Act, and the provisions of that
section, with any necessary modifications,
shall apply accordingly.
(4) The decision whether to lay any information or charge for an alleged
offence in respect of which any property is seized under
subsection (1) shall be
made as soon as reasonably practicable after the property is
seized.
Provisions relating to seized
property
208 Chief executive may release seized property under
bond
(1) On application by—
(a) a person from whom property has been seized under section 207 of this Act; or
(b) the owner or person entitled to possession of the property seized,—
the chief executive may, at any time until an
information or charge is laid for the alleged offence in respect of which the
property
was seized, release the property to any such person under bond in such
sum and under such sureties and conditions (if any) as the
chief executive may
specify.
(2) It is a condition of every bond under this section that, upon the
forfeiture under this Act of the property that is the subject
of the bond, the
person to whom the property is released shall forthwith return the property to
the custody of the chief executive
unless the chief executive advises the person
in writing that the property does not have to be so returned.
(3) If any person to whom property is released under subsection (1) fails to
comply with the conditions of any bond or with any condition
specified by the
chief executive,—
(a) the property may be reseized at any time at the direction of the chief executive; and
(b) the provisions of this section shall apply to the property as if it had been seized under section 207; and
(c) The chief executive may, in the case of failure to comply with the conditions of any bond, apply to a court for an order for estreat of the bond; and
(d) If the chief executive so applies, the chief executive shall fix a time and place for the hearing of the application, and shall, not less than 7 days before the time fixed, cause to be served on every person bound by the bond, and every surety, a notice of the time and place so fixed; and
(e) If, on the hearing of any such application, it is proved to the satisfaction of the Court that any condition of the bond has not been complied with, the Court may make an order to estreat the bond to such an amount as it thinks fit against any person bound thereby, and any order it thinks fit in relation to any surety on whom notice is proved to have been served in accordance with this subsection; and
(f) Any amount payable in accordance with this subsection shall be recoverable as if it were a fine.
All
property seized under section 207 of this Act and (if applicable) the proceeds
from the sale of any such property under section
212 of this Act, except where
such property or proceeds have been forfeited to the Crown under section 211,
shall, subject to section
208(1), be held in the custody of the Crown—
(a) until a decision is made not to lay any information or charge for any alleged offence in respect of which the property was seized; or
(b) if a charge or information is laid for an offence in respect of which the
property was seized, until the completion of such proceedings,
and, if the
property is forfeit, until the disposal of the property under this Act or such
sooner time as the Court may determine.
210 Crown to release
seized property in certain circumstances
(1) If any property has been seized under section 207, and such property or
the proceeds from the sale of such property under section
212 remains in the
custody of the Crown, then such property or proceeds shall forthwith be released
from the custody of the Crown--
(a) if a decision is made not to lay an information or charge:
(b) on the acquittal of all persons charged with any offence for which forfeiture of the property or proceeds is a consequence of conviction.
(2) If any information or charge has been laid for any alleged offence
in respect of which the property was seized under section 207 and
that property,
or the proceeds from the sale of such property under section 212, remains in the
custody of the Crown, the Court may
at any time release the property or
proceeds, on application by—
(a) the person from whom the property was seized; or
(b) the owner or person entitled to the possession of the property seized;—
and any such release may be subject to such sureties and conditions as the Court may specify.
[1] Grigson v Ministry of
Fisheries [1998] 3 NZLR
202.
[2] At
221.
[3] Attorney-General v
District Court at Napier HC Napier CIV-2009-441-270, 19 August
2009.
[4] At
[35].
[5] Fisheries Act 1996, s
208.
[6] Section
207(2).
[7] Section 236(2). The
offending in this case was subject to the two year
limit.
[8] Summary Proceedings Act
1957, s 14.
[9] Section
209.
[10] Section
208(1).
[11] Section
208(2).
[12] Section
210(1).
[13] Section
210(2).
[14] At
[33].
[15] At
[36].
[16] At
222.
[17] At
221.
[18] At
[35].
[19] Kleinwort Benson
Ltd v Lincoln City Council [1998] UKHL 38; [1999] 2 AC 349 (HL).
[20] We should note that the
1996 Act was enacted before the decision in Grigson was delivered.
Accordingly, it cannot be said that Parliament enacted s 207(4) with knowledge
of the reasoning in
Grigson.
[21] At
221–222.
[22] At
223.
[23]
Ibid.
[24] See, for example,
Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA).
[25] New Zealand Bill of Rights
Act 1990, s 25(b).
[26] R v
Williams [2009] NZSC 41, [2009] 2 NZLR 750 at
[18].
[27] At
[9].
[28] At
[11].
[29] At
[18].
[30]
Ibid.
[31]
Ibid.
[32] At
[29].
[33] At
[30].
[34] At [31].
[35] See, for example, Lamer CJC’s discussion of officially induced mistakes of law in Jorgensen v R [1995] 4 SCR 55, at [4]–[36] and the discussion of prospective over-ruling in R v Governor of Brockhill Prison, ex parte Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19 (HL) at 26–27 per Lord Slynn, at 29 per Lord Steyn and at 36 per Lord Hope.
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