The RMA Quality Planning Resource

Principle purposes of prosecution

The two principal purposes of prosecution are to punish the offender and to deter potential offenders. The purpose of deterrence is articulated in Hall's Sentencing (Lexis Nexis loose-leaf edition), I.3.3 page 210 as:

Deterrence is the attempt to restrain persons from offending by the threat, or actual imposition, of punishment. The principle has a twofold aspect: it may both specifically deter the offender before the Court from re-offending (specific [special] deterrence); and generally deter other persons who may be minded to offend in a similar way (general deterrence) … The essential distinction between the two is that the former relies on memory, the latter on imagination!

The Sentencing Act 2002 includes the two purposes of prosecution of deterrence and punishment as two of its principles (refer s8 of the Sentencing Act).

Standard of proof

Before prosecution can be considered as an option, the chances of success must be carefully considered based on the evidence. The prosecution must establish guilt to the criminal standard, which is 'beyond reasonable doubt'.

Whether a defence is available under s340 and/or s341 of the RMA should also be considered. The defendant must establish a statutory defence applies 'on the balance of probabilities '.

Continuing offence

Section 339(6) of the RMA provides that the continued existence of anything, or the intermittent repetition of any actions, contrary to the RMA shall be deemed to be a continuing offence.

The continuing nature of offending can also be a relevant factor in determining the appropriate sentence, including whether a term of imprisonment is an appropriate sentence (R v Conway CRI-2008-004-19495 (No. 2)).

Laying an 'information' (charge)

Filing in court

Laying the 'information' by filing it with the Court commences criminal proceedings. The Supreme Court has confirmed that it is not necessary for leave of the District Court to be sought under section 21(1)(a) of the SPA just because an offence also happens to be an infringement offence (Down v The Queen [2012] NZSC 21).  

The 'information' must be filed in the District Court nearest to the place where the offence was alleged to have been committed, or where the informant believes the defendant may be found (refer s18 of the SPA).

Subsection (4) of s338 of the RMA provides that an 'information' (charge) may be laid up to six months from the time when the contravention first became known, or should have become known, to the local authority. Where the offence charged is a continuing offence, time runs from each and every day the offence continues (See Waikato Regional Council v Ross (Des) Britten Limited [2009] CRI-2009-024-527).

Particulars of an 'information' (charge)

Except where otherwise provided in the RMA, a separate 'information' (charge) must be laid for each offence. The information must contain sufficient detail so as to fairly inform the defendant of the substance of the offence the defendant is charged with (refer s17 of the SPA).

Where the exact date of the offence is not known, the date should be stated as being ‘on or about’ a particular date, or on a day unknown between two stated dates. It is important to identify the date of the offence alleged as accurately as possible.

If there is doubt about the particulars of the charge, the local authority should consider whether they might be stated in the alternative, or left out if not an element of the offence. For example, a local authority's primary theory might be that the defendant company was acting through a particular agent in the committing of an offence. If the local authority states these particulars, it will have to prove the link beyond reasonable doubt.

If a person other than a natural person is convicted of an offence against the RMA, it may not be necessary to rely on the agency to show liability (through s340 of the RMA). Instead, the fact that a director of the defendant or a person involved in the management of the defendant authorised and knew of the offending and failed to take all reasonable steps to prevent or stop the contravention can be relied on (refer s338 of the RMA).

The importance of clearly linking the offence and the offender was highlighted in Auckland Regional Council v Horticultural Processors Ltd [1993] CRN 2090016530. In this case, a charge was dismissed on the basis that the wording had not established a key link between a cartage contractor and the company responsible for the offence. The Court noted that the difficulty in the wording was apparent and could have been amended.

In addition to the above, enforcement officers should consider two more points in laying information for an offence:

  • Local authorities need to be certain that the sections under which they are prosecuting relate to their functions and powers
  • be conscious of the elapse of time between the date the offence is committed and the laying of the information when considering prosecuting (as the time limit under s338(4) of the RMA is six months from time when the offence first became known, or should have become known, to the local authority).

Right to select trial by jury

Section 66 of the SPA provides that, for offences which are punishable by imprisonment for a term exceeding three months, the defendant has the right to elect trial by jury. Because the maximum term of imprisonment under the RMA is two years, a defendant being prosecuted under the RMA has this right.

Prosecution: defences

Overview

In prosecution cases the role of the defendant's legal counsel will generally be to:

  • try to refute the evidence
  • try to weaken the credibility of witnesses presented by the prosecution
  • plead the original rule, abatement notice, enforcement order, infringement notice or resource consent condition as defective and materially affecting the defendant's rights.

The importance of clear and accurate notices for enforcement purposes was highlighted in Waikato Regional Council v Huntly Quarries Ltd [2004] NZRMA 32 (and confirmed in R v Fugle CRI-2007-054-4228 (dc)). In this case, the council had omitted to include the reasons in an abatement notice. The Court held on prosecution that the defect was a basic one, affecting the defendant's ability to decide whether to appeal, and no prosecution could properly be based upon such a notice.

Defences for principals of offenders - s340(2) of the RMA

The RMA provides defences for particular situations, including defences to the strict liability offences provided by s341(1) of the RMA, defences for 'principals' (those who appointed others who carried out or permitted the contravening act), and defences for the managers and directors of companies convicted of an offence. This includes directors and managers of Crown organisations and unincorporated groups. It is open to the defendant to prove a defence on the balance of probabilities, and if successful escape the relevant charges.

A further defence is found under common law in strict liability cases, being the defence of total absence of fault. For example, In Auckland City Council v Selwyn Mews Ltd [2003], CRN 2004 067301-19 the Court considered the test from Millar v Ministry of Transport [1986] 1 NZLR 660 as quoted in Tell v Maritime Safety Authority [2002] CA 230/02 and stated at paragraph 100:

…there must be a presumption in favour of 'total absence of fault' defence, rather than absolute liability. To impose absolute liability would need clear statutory language, and that is just not present here.

In terms of s340 of the RMA, a principal is a person (a natural person or a person other than a natural person) who appoints another who commits an offence while acting in the capacity as their agent or employee.

Section 340 of the RMA provides that a principal is liable for the acts of its employees and agents, including any contractor. If charges are laid against the principal, a defence is available under s340(2) of the RMA if it is proved that the principal:

  • did not know nor could reasonably be expected to have known about the offence, and in the case of a person other than a natural person, the directors or any person involved in the management of the defendant did not know nor could reasonably be expected to have known about the offence or
  • took all reasonable steps to prevent the commission of the offence, and
  • took all reasonable steps to remedy any effects of the offence.

The Courts have been careful to prevent principals 'passing the buck' to employees and agents. Culpable knowledge has been found to include situations where the principal was aware that the offending act was likely to arise if something they had control of through their employees and agents did not occur, and had not taken adequate precautions to ensure the employees and agents performed accordingly.

For example, in Northland Regional Council v Tranz Rail Ltd [1996], Tranz Rail had relied on defence that a contractor was transporting the material that was discharged; and that it could not be proved beyond reasonable doubt that reasonable steps had not been taken to prevent a spillage. However, the Court found Tranz Rail guilty on the grounds that, given the Council had informed Tranz Rail over concerns in regard to their operations, Tranz Rail was aware of the need to guard against spillage, but had not taken adequate steps (within its control) to prevent it happening.

In Canterbury Regional Council v Newman [2002], the defence of taking all reasonable steps (s340(2) of the RMA) was relied on. The Court held that:

  • the effects mentioned in s340 of the RMA are those on natural and physical resources, they are not social, economic, or effects by way of loss of profits
  • remedying effects does not therefore extend to arranging alternative grazing, compensating for loss of profits, re-sowing, replanting or re-fencing
  • a defendant can reply on remedial work carried out by an affected party, provided that work has been carried out before 'informations' (charges) have been laid
  • fear of prejudicing liability insurance cover does not justify an action
  • section 314(1)(d) of the RMA is available as a defence in instances of purely vicarious liability.

Defences for managers and directors of convicted companies

To obtain a conviction against a director of the defendant or a person involved in the management of the defendant of a person other than a natural person convicted of an offence, s340(3) of the RMA provides that the local authority must prove two points. These are:

  • the act or omission that constituted the offence took place with his or her authority, permission or consent; and
  • that he or she knew or could reasonably be expected to have known that the offence was to be or was being committed, yet failed to take all reasonable steps to prevent or stop it.

There is one common situation that in practice means a director of the defendant or a person involved in the management of the defendant might be convicted without proof of the requirements under section 340(3) of the RMA. Particularly in smaller companies, a director of the defendant or a person involved in the management of the defendant might be in direct (and/or sole) control of activities giving rise to the offence on site. If this is the case, that person can be charged with permitting a contravention in terms of s338 of the RMA, and the local authority therefore does not need to charge that person as a principal under s340 of the RMA.

For example, in R. v Lorenzen [2003] T031951, the sole director of a company was convicted of clearing vegetation without a resource consent despite not being the contractor who actually carried out the work (who could not be found). The Court held:

  • the Crown does not need to rely on ownership of the land
  • the prosecuting authority does not need to charge the company to be able to proceed against the defendant
  • liability can arise directly through s338(1) as the person contravening the relevant provision or permitting its contravention.

Strict liability defences - s341 of the RMA

Section 341(1) of the RMA provides that various offences are strict liability offences (such that no motive needs to be proven).

The defence of due diligence (reasonable care) is available for a strict liability offence in common law. The defences in s341(2) are a codification of that common law defence.

Section 341(2)(a)

In summary, s341(2)(a) of the RMA provides a defence to the strict liability offences in s341(1) in certain emergency situations, provided the conduct was:

  • necessary for the purposes of saving life, health, or preventing serious damage; and
  • reasonable in the circumstances; and
  • adequately mitigated or remedied by the defendant after they occurred.

Similar provisions exist in ss341A and 341B of the RMA in relation to discharges contrary to ss15A and 15B.

The Court has said that the three requirements of s341(2)(a) should not be considered in isolation, as they overlap.

In s341(2)(a), 'necessary' has been interpreted as having to be more than desirable: urgency has to be proved. In Smith v Riddiford [1996], necessary was taken to be a "fairly strong word falling between expedient or desirable on one hand and essential on the other".

In terms of ‘reasonableness’ the Court found in Fugle v Cowie [1998] 1 NZLR that 'reasonableness' must be determined objectively, given the facts known then and using common sense. Hindsight must be avoided. Conduct can more readily be regarded as reasonable when immediate adverse effects can be, and have been, remedied. Where damage is irreparable, one should pause long before acting. Where resulting damage can be repaired in whole or in part, it is harder to describe action as reasonable when that damage is left unrepaired.

In Smith v Riddiford [1996] CRN5035005704-6, Riddiford unsuccessfully relied on a s341(2)(a) defence in respect to large-scale earthworks. One of the arguments for the defence was based around the relationship between s341(2)(a)(i) and s341(2)(b). The Court stated that the two should not be read as though they were of a similar nature. Whereas s341(2)(b) indicated matters that were beyond the control of the defendant, the instances in s342(2)(a) "have nothing to do with a lack of control".

Section 341(2)(b)

Section 341(2)(b) of the RMA provides a defence where the action or event was beyond the control of the defendant (such as through natural disaster, or sabotage), could not have been reasonably foreseen, and were adequate mitigated or remedied by the defendant after the offence occurred.

If the remedial work required under s341(2)(b)(ii) to adequately mitigate or remedy the effects of an event is not work that is within the control defendant of the defendant to carry out, the defendant can reserve its position by formally offering to carry out the work or paying the reasonable costs of doing the works (Auckland Regional Council v URS New Zealand Limited (No. 2) CRI-2008-000413603).

Section 341(2)(b) was unsuccessfully relied on in Auckland Regional Council v Bitumix Ltd [1993] CRN 3048098, and in Manawatu-Wanganui Regional Council v Wakapua Farms Ltd [2012] CRI-2011-031-643 and Canterbury Regional Council v Steelbro New Zealand Ltd [2006] CRN05009503624.

In Bitumix the Court did not consider a discharge could not have been reasonably foreseen. This was because the valve in question "was plain for all to see" and the discharge had continued for some time, to the knowledge of at least the defendant's employees.

In Wakapuna the Court emphasised that an event beyond a defendant's control does not need to be as extreme as a disaster, or a mechanical failure, or sabotage or something of that kind. However, the Court considered that, in this case, nothing could have been more reasonably foreseeable than if the relatively unsophisticated system involved was not well monitored and not well managed, then it would fail and overflows would occur.

In Steelbro the defendant company could not show that a diesel spill was unforeseeable because, despite the spill being caused by a third party’s act of sabotage, the defendant had failed to take the precautions that a reasonably prudent person would take to prevent the escape of the diesel.

Section 341(2)(b) was successfully relied on in Bay of Plenty Regional Council v D 'Ath [1995] CRN 4087005973 sabotage was successfully used as a defence. The Court held that the defendant had taken reasonable steps to avoid a discharge.

Defendant must give notice of defences - s341

If a defendant intends to rely on one of the defences in s341(2) of the RMA, the defendant must give written notice to the prosecutor, specifying the facts that support the defence, within seven days of service of summons. If the defendant fails to give notice within a seven-day period, leave of the Court must be sought for extension of time. In such cases the Court may grant an adjournment.

In R v Conway [2008] CRI-2006-092-1891 the Court was willing to grant an application for adjournment and leave to raise a defence under s341 because of changes in counsel for the defendants; the fact that current counsel were not acting during crucial periods of trial preparation; and the strict liability nature of offences which could result in imprisonment.

Sentencing

Overview of sentencing

Sentencing is the process whereby a Court arrives at an appropriate punishment for offending. It is a balancing exercise in which a range of factors are weighed.

Local authorities through their legal counsel can take an active part in sentencing. This can be done through both:

  • making submissions on penalty
  • suggesting a range of other sentencing options, including restorative (reparation) orders.

The relevant matters for sentencing under the RMA were considered in Auckland Regional Council v Machinery Movers [1994] 1 NZLR 492 at 501, where the High Court noted that:

Like many other statutes, the RMA is silent on the matters which may be taken into account on sentencing. To a large extent, the relevant criteria must be inferred from a consideration of the broad legislative objectives.

In Machinery Movers the High Court quoted and approved of the sentencing factors in R. v Bata Industries Ltd [1992] 9 OR (3d) 329 (liability); 7 CELR (NS) 293 (sentencing). Bata was a Canadian Court of Appeal case about discharge of waste by a shoe company into the ground in Ontario. In this case the Court stated:

Within the subtopic of public welfare offences, environmental offences have their own set of special considerations … The severity of the sentence should vary in accordance with several factors, including:

  1. The nature of the environment affected;
  2. The extent of the damage afflicted;
  3. The deliberateness of the offence;
  4. The attitude of the accused.

In sentencing corporations convicted of environmental offences, the Court should consider:

  1. The size, wealth, nature of operations and power of the corporation;
  2. The extent of attempts to comply;
  3. Remorse;
  4. Profits realised by the offence;
  5. Criminal record or other evidence of good character.

Some or all of the sentencing factors for environmental offences, as stated in the Bata decision and approved by the High Court in Machinery Movers, have been referred to in the sentencing notes of almost every prosecution under the RMA since the Machinery Movers case and are now the well-established factors to consider when sentencing under the RMA.

The Court has emphasised that a penalty must not be a mere licence fee to offend but an effective deterrent to non-compliance (Otago RC v Plakmaj Holdings Ltd District Council Invercargill CRI-2010-017-247, 26 July 2010).

Some uplift from previous starting levels is appropriate given the increase in statutory penalty since 2009 (which increased the penalty for companies threefold) but this does not require an increase by a factor of three for companies (Nelson City Council v Dalpeko Holdings Ltd CRI-2012-042-537, 23 May 2012).

In Waikato Regional Council v Chick (2007) 14 ELRNZ 291 (DC) the Court in considering the starting points for penalties for dairy effluent discharge offences, classified offending into three categories in order to provide guidance on appropriate starting points for penalties. The categories take into account the seriousness, deliberateness and whether the offending is of a reoccurring nature.

Sentencing options

The RMA expressly provides, on prosecution, for fines, enforcement orders, and imprisonment in some cases. The Sentencing Act 2002 also applies, and should be read together with the RMA.

The Court has three options, if a defendant pleads guilty:

  • convict and discharge without sentence
  • discharge without conviction
  • convict but require the defendant to come up for sentence if called on (s11 of the Sentencing Act 2002, but also see s106 and 108).

Section 20 of the Sentencing Act 2002 provides guidance on the use of combination of sentences. This allows the following alternatives:

  • fine or community work
  • supervision and community work
  • fine and supervision
  • imprisonment
  • and any combination of these.

The major implication of use of combination of sentences in s20 of the Sentencing Act 2002 is, that the local authority cannot ask for both a fine and community work. Yet both might be desirable in environmental cases to achieve a financial penalty, as well as actively demonstrate compensation and perhaps remorse to the community at large.

Sections 11 and 12 of the Sentencing Act 2002 place a presumption in favour of reparation and fines if they can be lawfully imposed. Imprisonment is reserved for situations where the offenders are proven to have acted knowingly and with a demonstrated contempt for their legal obligations, and where the Court is convinced that no other sentence will achieve the relevant purposes of the RMA or is likely to be complied with by the offender if imposed. Section 16 of the Sentencing Act 2002 acknowledges that, in general, it is desirable to keep offenders in the community as far as that is practicable and consonant with the safety of the community.

Reparation is allowed for loss of, or damage to, private property. RMA offences rarely cause such personal loss. However, an order under s314 of the RMA can include restoration of a natural or physical resource (refer s314(4) of the RMA). Examples include tree planting on public reserves, after offenders have illegally cleared vegetation.

A sentence of community work is available under s55 of the Sentencing Act 2002 for those offences punishable by imprisonment. Section 50 of the SA allows special conditions to be imposed for a programme of supervision, where standard conditions would not adequately address the significant risk of further offending. This might include participation in an educational programme. There have been instances where offenders that are not natural persons have made offers of amends and these have been taken into account at sentencing. In RMA-related cases, this has included presentations to schools and industry groups about good environmental practice.

The making of orders other than, or in addition to, the imposition of a fine, aligns well with s7 of the Sentencing Act 2002 relating to the purposes of sentencing. Those purposes include, "to promote in the offender a sense of responsibility for and an acknowledgment of that harm", and "to provide reparation for harm done by the offending". Some people do not have the ability to pay a fine and few fines get close to maximum penalties (although fines are increasing generally, and for recurrent offenders in particular. This trend will continue following the 2009 amendments to the RMA, which raised the maximum penalties for RMA offences). Other sentences can get better results, especially for big companies or wealthy individuals.

The case noted above in relation to sentencing, R. v Bata Industries, became widely known in Canada and was also applied elsewhere due to the creative approach it took to sentencing. The Court applied its probation order powers to require publication of the details of the offence in Bata's international journal. The first such order in relation to RMA offences was made in New Zealand in a follow-up case to Auckland Regional Council v Nuplex Industries (DC Auckland, CRN 2004066321, 18/03/2003, Judge McElrea). In this case, the Court required that Nuplex Industries include both:

  • details of the two relevant prosecutions in its next annual report
  • environmental issues on the agenda of all board meetings for the next 24 months.

(Further information is available on the relationship between the Sentencing Act and RMA).

Fines to be paid to the local authority

Where a local authority lays a charge (information) and there is a conviction with the Court imposing a fine, then the fine is paid to the local authority under s342(1) and s342(2) of the RMA. This excludes a deduction of 10% which is credited to the Crown Bank account. However, under s342(1) of the RMA the Court can order that the whole fine be paid to the local authority.

Nothing prevents a local authority from redirecting (part of) those funds to a specific environmental purpose, as compensation to the community at large. Some possibilities are highlighted by examples of the creative uses of fines in Canada, including requiring a convicted company to pay $100,000 to promote the conservation of fish habitat; ordering a company to pay $30,000 to develop a local toxic waste programme; and directing a corporation to pay their fine to a local school board for the purpose of environmental education.

Restorative justice

Restorative justice in New Zealand started in the Youth Courts and was then trialled in the District Court. It is now incorporated into RMA offence proceedings by agreement of the parties, and involves engaging in meetings that can result in an offer of amends. Any restorative justice measures agreed to by the parties may be considered in sentencing (pursuant to s10 of the Sentencing Act 2002).

Restorative justice arises from a theory of justice that emphasises repairing the harm caused or revealed by criminal behaviour. Some of the programmes and outcomes typically associated with restorative justice include victim offender mediation, conferencing, victim assistance, ex-offender assistance, restitution and community service. Typically the programmes use cooperative processes involving all stakeholders to identify and take steps to repair harm. The acknowledgement of guilt by the defendant, and of the fact that he or she may have caused harm, is a crucial pre-requisite for restorative justice.

What makes restorative justice an alternative approach, is that it brings the victims and the community into the circle of justice. It rejects the common choice between either assisting offenders or punishing them as too narrow, being focused only on the offender and the act of law breaking. Its central aims include:

  • providing a process in which the victims and community and offender can learn about each other in relation to the crime. In particular, it helps to ensure that crime is met with an appropriate message from those affected by it; and to provide an opportunity for the offender to understand and display remorse for the wrong-doing
  • producing practical outcomes that restore harm done, educate the offender and achieve a change in his or her attitude, and provide a basis for the community may begin to trust the offender again. This is to help the community to feel safe and secure so the offender may be reintegrated.

Three principles form the foundation for restorative justice:

  • justice requires that we work to restore those who have been injured
  • those most directly involved and affected by crime should have the opportunity to participate fully in the response if they so wish
  • Government's role is to preserve a just public order, and the community's is to build and maintain a just peace.

The fact that restorative justice agreements are tied to sentencing is both a carrot and a stick to the defendant, especially if their track record and previous attitude is an aggravating factor for penalty.

Few local authorities have been involved in restorative justice on RMA offences, and opinions are mixed about its effectiveness. Some of its primary advantages are: raising community awareness of compliance under the RMA; gathering feedback about existing environmental values held by the community; and providing opportunities for on-going informal monitoring and reporting on environmental matters of interest to citizens, including compliance. A case law example of restorative justice is illustrated in Auckland City Council v B & C Shaw Ltd and George Bernard Shaw [2006] CRN: 2004502435, 5003402436.

Matters to bear in mind in using restorative justice include the danger of focusing too much on compensation and mitigating the effects of the offence, and less on appreciating the harm done and ensuring that the offender demonstrates remorse. The defendant may be more than willing and able to pay for mitigation to avoid a serious penalty or conviction, without being tested as to genuine remorse or a change in attitude about environmental behaviour. There is also the difficulty of providing an on-going framework for attitude change, because environmental values do not change overnight. Local authorities should also be wary of the costs that agreements can impose on them down the track. For example, if the defendant pays for the planting of trees on public reserves, the will be on-going maintenance costs which he or she may not meet.

Costs

In common law, costs are the remuneration and disbursements incurred in relation to legal work. The Court can award costs against (to) the unsuccessful party, in favour of the successful party in a prosecution.

Costs awarded to the prosecuting authority

Section 4 of the Costs in Criminal Cases Act 1967 (CCCA) authorises the Court, when a defendant is convicted subject to any regulations made under the Act, to order the defendant to pay such sum as it thinks just and reasonable towards the costs of the prosecution.

There is a maximum scale of costs in the schedule to the Costs in Criminal Cases Regulations 1987. The scale in the schedule for conducting a prosecution is:

  • a maximum of $226 if the defendant pleads guilty
  • for each half-day or part half-day the maximum is $113.

There is power under s13(3) of the CCCA for the Court to make an order for the payment of costs in excess of the scale if the Court is "satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable". This provision was considered in Auckland Regional Council v Haines House Removals Ltd [2000], where the Court considered that there was no jurisdiction to award costs in excess of the scale. The case, while important, was not of 'special importance'.

Costs incurred by a local authority in the taking of a prosecution (eg, solicitor fees and witness expenses) are to be considered separately from costs borne in the investigation of an offence. They are also separate from any direct action taken to remedy effects where there is non-compliance, including the indirect costs of investigating and monitoring those effects. Costs in the latter category can be recovered by way of an enforcement order under s314(1)(d) of the RMA. Section 318 requires that before deciding an enforcement order the Environment Court shall hear the applicant and hear the person against whom the order is brought (if that party wishes to be heard).

For example, in Interclean Industrial Service Ltd v Auckland Regional Council [2000] A198/99, the Environment Court awarded costs against Interclean from contravention of an abatement notice. Interclean subsequently appealed to the High Court and sought that scale costs be imposed in place of the $7,500. In making a decision, the High Court decided that the legal costs of taking a prosecution could not come within s314(1)(d) of the RMA (relating to reimbursement or payment of costs of avoiding, remedying or mitigating adverse effects on the environment), because:

  • s314(1)(d) is focussed on costs incurred in avoiding, remedying or mitigating adverse effects where there has been a failure to comply with an abatement notice (amongst other matters)
  • the clarification provided in s314(2) does not mention legal costs of taking a prosecution
  • orders made under s314(1)(d) are intended to be compensatory, and the deterrent effect of the sentence flows principally from the penalties imposed under s339
  • the CCCA applies to RMA prosecutions.

The Court will take account of any reparation paid or costs imposed in setting the fine, to ensure that both fines and costs imposed add up to a globally appropriate penalty. The Court is therefore required to assess what is an appropriate penalty in total and then have regard to any award made by way of costs before imposing a fine (Auckland Regional Council v Haines House Removals Ltd [2000] and approved by the High Court in Burns v Bay of Plenty Regional Council [2010] NZRMA 45).

Costs awarded to the defendant

Section 5 of the Costs in Criminal Cases Act authorises the Court, subject to any regulations made under the Act, to order that the defendant be paid such a sum as it thinks just and reasonable towards the costs of the defence. This applies only when any defendant is acquitted of an offence, or where the information charging the defendant with an offence is dismissed or withdrawn - whether upon the merits or otherwise.

The schedule to the Costs in Criminal Cases Regulations referred to above applies, as does s13 of the CCCA, which allows the scale to be exceeded if the Court is "satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable".

Section 5 of the CCCA provides that the Court, in deciding whether to grant costs and the amount of any costs, shall have regard to all relevant circumstances. Particular considerations are whether:

  • the prosecution acted in good faith in bringing and continuing the proceedings
  • at the start of the proceedings, the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence
  • the prosecution took proper steps to investigate any matter coming into its hands which suggested the defendant might not be guilty
  • the investigation into the offence was generally conducted in a reasonable and proper manner
  • the evidence as a whole would support a finding of guilt but the information (charge) was dismissed on a technical point
  • the information (charge) was dismissed because the defendant established, either by the evidence of witnesses called by the defendant or by the cross-examination of witnesses for the prosecution or otherwise, that he or she was not guilty
  • the behaviour of the defendant (in relation to the acts or omissions on which the charge was based, and to the investigation and proceedings) was such that a sum should be paid towards the costs of his or her defence.