R v Williams [2023] NZDC 15735 (31 July 2023)

Last Updated: 9 November 2024

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL

IN THE DISTRICT COURT AT TIMARU

I TE KŌTI-Ā-ROHE KI TE TIHI-O-MARU

CRI-2019-076-001444-5 [2023] NZDC 15735

THE KING

Prosecutor v

LAURENCE WILLIAMS &

FOX PEAK STATION COMPANY LIMITED

Defendants

Counsel: C O’Connor and T McGuigan for the Crown

C J Shannon and E A Boshier for the defendant

Judgment: 31 July 2023

SECOND JUDGMENT OF JUDGE J J M HASSAN

Introduction

[1] Laurence Williams and Fox Peak Station Company Limited (‘FPS’) have pleaded not guilty and elected trial by jury to charges under the Resource Management Act 1991 (‘RMA) for alleged breaches of s9(2) (‘s9 charges’) and s15(1)(b) (‘s15 charges’). On 5 July 2023, the Crown applied under s133 of the Criminal Procedure Act 2011 (‘CPA’) to amend the charges. The application was opposed and I issued a first decision on the application on 20 July 2023 in [2023] NZDC 14871 (‘First Decision’).

[2] For the s9 charges, the Crown’s application sought a restructuring in essence

to specify 14 separate charges in place of the original two charges. Under that restructuring, the Crown proposed:

(a) one set of charges pertaining to alleged wetland reduction offences in breach of r 5.162 of the Canterbury Land and Water Regional Plan (‘LWRP’) (preferably proposed charges 1 – 6) (‘wetland reduction charges’); and
(b) another set of charges (preferably proposed charges 7 – 14) pertaining to alleged breach of r 5.69 (in place of r 5.68) of the LWRP as to use or disturbance of a wetland by stock (‘pugging charges’).

[3] The Crown also sought some amendments to the s15 charges but I do not traverse those here as the First Decision was that those amendments were appropriate.

The First Decision

[4] In that First Decision, I found that the s9 charges against the defendants are defective and cannot be put to the jury without significant amendment. Defects I identified were as to:

• (a) ambiguity as to whether these charges applied to pugging by stock; and
• (b) various failures to comply with ss16 and 17 CPA, including purporting to encompass more than one offence per charge and defective particularisation including as to dates and areas for the alleged wetland reduction offending (which I found to be representative).
  

[5] The First Decision accepted that for both the wetland reduction and pugging allegations, the Crown’s proposed amendments would address the noted ways in which the charges presently do not comply with ss16 and 17, CPA requirements.

[6] The First Decision records the following concerning whether the interests of justice favoured the amendment:

[107] Subject to the matter of records and pugging to which I return shortly, I find the interests of justice tend to favour grant of the application in full. That is in particular because the application is not an abuse of process and the amendments:

(a) rectify defects in the charges according to the requirements of the CPA;
(b) are founded in the evidence to be adduced at trial;
(c) allow matters to be more clearly and plainly put to the jury;
(d) do not give rise to significant prejudice to the defendants (subject to the matter of the records of cow movements on or about 4 July 2019);
(e) remediate, belatedly but not too late, inconsistencies with s24 BORA;
(f) do not give rise to a miscarriage of justice; and
(g) better serve the public interest in ensuring that charges for environmental offending, in this case pertaining to allegations of unlawful activities in regard to wetlands, are properly tried.

[7] As for the proposed specification of the pugging charges, I recorded the following:

• [99] As I find that pugging was included in the s9 charges along with wetland reduction allegations, I also find that the defendants would not face more serious charges. Whilst the totality of s9 charges would expand in number, that is more a matter of form than substance. In the event of a jury delivering verdicts of guilty, which of course is not in any sense prejudged, the offending would be considered in totality in accordance with sentencing principles. Therefore, I find that the Crown’s application would not mean the defendants would face more serious charges.
  
• [100] As with the wetland reduction charges, there would no doubt be additional costs in having to potentially brief more evidence. However, for the same reasons, I set those considerations aside. The additional time that may be required is also not significant given that I have vacated the earlier trial date. However, I find the matter of potential prejudice to the defendants more troubling than for the alleged contaminant discharge and wetland reduction offences.
  
• [101] The further difficulty centres on what counsel indicated concerning the potential for records and evidence of cow movements to be available. That issue concerns the Crown’s request that the charges specify “on or about 4 July 2019” period for this alleged offending (rather than 30 May 2019).

• [102] If that is a real difficulty, it is not fully answered by the fact that the Crown bears the evidential onus of proving the elements of the charges. The defendants have a prerogative to call evidence if they wish to defeat those elements.
  
• [103] If it is the case, as counsel suggest, that there may now be some irretrievable difficulties that would have been avoided had the Crown brought the intended amendment forward much earlier, that is a concern. It would arise directly from the failure of the Crown to fulfil its responsibilities as prosecutor.
  
• [104] However, it is difficult to reconcile what the defendants claim in these matters with their position concerning the s15 charges. Both the pugging allegations and the s15 charges pertain to cow movements and their consequences, i.e. pugging and discharges of sediment and/or cow effluent. Similarly, the Crown seeks that all such charges nominate “on or about 4 July 2019” as the period of the alleged offending (in place of 30 May 2019). As I have noted, in their submissions on the application, counsel for the defendants suggested that a practical resolution would be for the Crown to proceed simply on the basis of the amended s15 charges. Counsel did not explain how that is reconcilable with their submission as to the prejudice arising from record retrieval or evidence as to cow movements on or about 4 July 2019. The same applies in regard to the indication on behalf of the defendants that the change to the charges with respect to pugging may mean that they may need to call Mr Williams. Insofar as his evidence would pertain to cow movements on or about 4 July 2019, the same issues would appear to be present for the s15 charges that the defendants are satisfied could proceed as amended.
  
  • [105] These matters lead me to make the directions I come to shortly.
    

[8] In view of those findings, I reserved for further consideration whether the application should be granted subject to excluding the pugging offences from the charges. I noted any exclusion would depend on being duly satisfied that significant irremediable prejudice would otherwise arise by an inability on the part of the defence to adduce relevant records and call any related evidence they may wish on cow movements on or about 4 July 2019. In addition, I noted that I would need to be persuaded as to how that prejudice is compatible with proceeding with the amended s15 charges. I granted leave to the defendants to file a further memorandum to explain in light of inquiries:

• (a) what true difficulty if any exists as to retrieving records or adducing

evidence, should they wish to, of cow movements on or about 4 July 2019 (as opposed to records for movements on 30 May 2019);

(b) why this would be prejudicial for the pugging allegations but not the amended s15 charges given the defence has indicated the latter could proceed.

[9] I invited counsel to discuss those directions and whether I would be assisted by further submissions at the next scheduled callover. At that callover, on 21 July 2023, the defendants’ request for further time to file their memorandum was granted and the directions were otherwise confirmed.

27 July 2023 memorandum of counsel for the defendants

[10] The defendants responded to those directions by a memorandum of counsel dated 27 July 2023.

[11] To some extent, counsel address matters extending beyond the scope of the directions given in the First Decision. That is particularly as to how the defence approached matters according to how the charges were originally framed. I do not revisit those findings but focus on matters raised by counsel within the scope of the directions given.

[12] Counsel submit that the lateness of the Crown’s application has jeopardised the defence. In particular, they observe that the defendants could have been in an entirely different position had the Crown filed the proposed charges in the way it now seeks (including as to pugging) within six months of the alleged offending.

[13] Counsel submit that the lateness of the Crown’s application to amend the charges has a particularly prejudicial consequence for the defendants’ capacity to adduce evidence about cow movements / electric fence positions on or about 4 July 2019 (i.e. the proposed date range for the alleged pugging offences).

[14] Even if a witness can be found who could remember what cows were where at the time, counsel submit that any witness would be plainly in a worse situation for cross-examination “than if charges were filed within six months” as required under the

CPA. Counsel explain that, of the five people who were working on the Farm on 4 July 2019, the only one spoken to thus far cannot be certain on these matters.

[15] Adding to that, counsel explain they are still not clear exactly where the pugging is alleged to have occurred from the Crown’s formal statements and/or photographs. Assuming this will become clear once the Crown exhibits are settled, counsel say that would impose pressures in terms of preparation time.

[16] Counsel contrast the position with that for the s15 charges. The pugging allegations pertain to four different Areas (on opposite sides of the river and widely separated). By contrast, both for sediment and cow effluent aspects, the s15 charges are considerably more confined in their focus. Counsel indicate they understand that the sediment discharge aspects do not appear to pertain to stock movements, but rather to earthworks, as Area 1 is where most of that is alleged to have taken place. The cow effluent discharge aspect of the s15 charges also pertain only to Area 1 and this aspect is essentially concerned with an issue of conflicting expert evidence on water quality test results. Counsel explain that ECan’s water testing, carried out by Shirley Hayward, relates only to Area 1 and the intended defence expert, Dr Chris Hickey, has responded to that testing evidence. The s15 charges would require little or no analysis of stock movements and exact fencing locations. It would certainly not require that for Areas 2, 3 or 4, on 4 July 2019.

Discussion and determination

[17] On the matter of cow movements (and electric fence positions), I accept counsel’s explanation that difficulties centre on the four years that have elapsed and how this could bear on any witness’s capacity to accurately recall matters. Counsel do not specifically comment on the position concerning any records as may exist. However, insofar as the defendants would seek to call witnesses of fact about cow movements and electric fence positions, it would be plainly more difficult to now recall matters with accuracy some four years after the now alleged dates for the pugging offending (i.e. on or about 4 July 2019). That is as compared to the situation that could have pertained had the charges been clear in these terms from the outset or at least much earlier than the Crown’s application on the eve of trial. Indeed, the last plain

opportunity for doing so for the pugging allegations was some 16 months’ ago (in response to the Court’s draft Preliminary Memorandum of Judge to Jury).

[18] I accept counsels’ explanation of why the position for the pugging allegations is materially different from that for the s15 charges. Most significantly, the s15 charges pertain only to Area 1. Furthermore, the cow effluent aspects of these charges are clearly understood to the extent that there is contested expert opinion on them. As for the sediment discharge aspects, even if these pertain to cow movements to some extent, these are confined to Area 1, as compared to four different areas spread across the Farm on or about 4 July 2019.

[19] In view of the further explanation given by counsel, I find the prejudice arising in regard to the pugging allegations is not remediable. Given that position, allowing the application in regard to the pugging allegations would be a miscarriage of justice.

[20] I find that it is not in the interests of justice to allow this aspect of the Crown’s application.

Outcome

[21] For those reasons and the reasons in the First Decision:

• (a) the Crown’s application for proposed Charges 1 – 6, 15 and 16 is granted and hence those reframed charges, to be numbered Charges 1 – 8 now substitute for the original charges;
• (b) the remainder of the Crown’s application (i.e. as to proposed Charges 7

– 14) is declined;

(c) further to the directions in the Minute following callover dated 21 July 2023, it is directed that by Friday 4 August 2023:

• (i) the Crown is to file and serve a fresh Crown Charge List to reflect those outcomes;
• (ii) counsel are to confer and file a joint memorandum providing any comments on the updated draft Preliminary Memorandum of Judge to Jury that is provided to counsel together with this judgment.;

(d) I make the order set out on the first page of this judgment (as also pertaining to [2023] NZDC 14871).

J J M Hassan

District Court Judge and Environment Judge