SPROULL v WORKSAFE NEW ZEALAND [2022] NZCA 40

SPROULL v WORKSAFE NEW ZEALAND [2022] NZCA 40 [7 March 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA291/2021[2022] NZCA 40BETWEEN DANIEL REUEL SPROULLApplicantAND WORKSAFE NEW ZEALANDRespondentCourt: Collins, Duffy and Dunningham JJCounsel: A Shaw for ApplicantA R Everett and R Woods for RespondentJudgment:(On the papers)7 March 2022 at 9.30 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] The applicant, Daniel Sproull, seeks leave to bring a second appeal against hisconviction in the District Court on two charges under s 176 of the Health and Safetyat Work Act 2015 (the Act).1 Judge Krebs found that Mr Sproull failed to give allreasonable assistance to WorkSafe Inspectors (the Inspectors) to exercise their powersunder the Act. Mr Sproull was fined $2,000 on each charge.2 The convictions wereupheld by Mander J in the High Court.31 WorkSafe New Zealand v Sproull [2020] NZDC 25821.2 WorkSafe New Zealand v Sproull [2021] NZDC 195.3 Sproull v WorkSafe New Zealand [2021] NZHC 902.[2] The leave application essentially raises the following issues: (a) whether therewas a proper basis for the High Court to allow the prosecution to adduce furtherevidence; (b) absent the further evidence, whether there was sufficient evidence toprove the Inspectors' appointments were valid; and (c) whether the convictions wereentered contrary to ss 25(a) and/or 27(1) of the New Zealand Bill of Rights Act 1990.Background[3] The convictions followed Mr Sproull's failure to facilitate inspections of thework sites operated by a company of which he was a director. When the Inspectorssought to inspect the work sites, Mr Sproull queried their appointment. WorkSafegave him copies of the Inspectors' respective letters of appointment. Mr Sproull stilldid nothing to facilitate the inspections. Charges were laid against him. Before andat the Judge-alone trial in the District Court, Mr Sproull represented himself.[4] The disclosure WorkSafe gave to Mr Sproull prior to the trial did not includecopies of the letters of appointment that he had earlier received from WorkSafe.Mr Sproull informed WorkSafe it had not disclosed all documents relating to his case,including "the details of delegation which have not been provided". WorkSafe realisedthat he had not been formally provided with the Inspectors' letters of appointment aspart of its disclosure obligations and so they were given to him again.4 Nothing elserelevant to "delegation" was provided to him.[5] Subsequently in a memorandum filed in the District Court WorkSafe wronglystated:In relation to the defendant's request for "details of delegation", the prosecutoris unsure of the nature of document or documents that are sought. It is notedthat the appointment of inspectors is carried out by the Chief Executive ofWorkSafe, such that no issue of delegation arises.[6] WorkSafe now accepts that the statement "no issue of delegation arises" wasincorrect. The disclosure had not addressed the issue of the Chief Executive'sdelegated authority to appoint the Inspectors. It seems nothing more was said aboutdisclosure of delegation issues at the time. The prosecution went to trial. During the4 The Criminal Disclosure Act 2008, ss 12–19 set out the disclosure requirements of prosecutors.course of the trial WorkSafe called evidence to produce the identity cards issued to theInspectors under s 164 of the Act and the letters of appointment signed by the ChiefExecutive. It also confirmed in evidence that the Inspectors had been continuouslyemployed by WorkSafe since the date of their respective appointments.[7] Mr Sproull did not cross-examine the prosecution witnesses and he did notmake any submissions to the Court. Accordingly, nothing was done to put in issue theChief Executive's authority to appoint the Inspectors or the validity of their letters ofappointment. The Judge found the charges proved and convictions were duly entered.[8] When the appeal was brought in the High Court Mr Sproull was legallyrepresented, and for the first time the issue of the Chief Executive's authority toappoint the Inspectors was clearly raised in court. Mander J accepted that the authorityto appoint the Inspectors was vested in the WorkSafe Board and that the ChiefExecutive could only make these appointments using authority delegated to him bythe WorkSafe Board. It was accepted that this matter was not covered in evidence attrial.[9] Mander J allowed WorkSafe to produce further evidence on appeal whichproved that the WorkSafe Board had properly delegated their appointment powers tothe Chief Executive. Mander J essentially found Mr Sproull's resistance to theadmission of this evidence and his arguments that the prosecution case wouldotherwise be missing proof of a vital element to be technical and ineffective.Accordingly, the appeal was dismissed, and the convictions were upheld.The current appeal[10] Mr Sproull contends there was a failure by WorkSafe to make full disclosureof relevant documents in the District Court. Additionally, in the District Court, counselfor WorkSafe did not argue that the WorkSafe Board had lawfully delegated the powerto appoint inspectors to the Chief Executive. Leading up to the trial, WorkSafeexpressly disavowed that the issue of delegation was relevant to whether the Inspectorswere validly appointed. During the hearing of the appeal, counsel for WorkSafesought and was granted leave to adduce documents for the first time showing theWorkSafe Board had delegated the power to appoint WorkSafe inspectors to theChief Executive. Mr Sproull contends there was no proper legal basis in thecircumstances of the case for admitting such evidence on appeal. Further, theapplication for leave to appeal involves matters of general or public importance andthere is a real risk that a miscarriage of justice has occurred through wrongfulconviction.[11] On the other hand, WorkSafe contends leave should be refused on the groundMr Sproull has not established that the proposed appeal raises an issue of general orpublic importance nor that there may be a risk of miscarriage of justice should theleave application be declined.Discussion[12] We are satisfied that the proposed appeal does not raise any issue of general orpublic importance and there is no risk of miscarriage of justice should the leaveapplication be declined.[13] The issues the proposed appeal raises about proof of the authority of theInspectors to bring the prosecution are unique to this prosecution. In R v O'Connellthis Court identified three matters relevant to authority to bring a prosecution (albeitthis was done in the context of the prosecution of a charge for which leave tocommence from a designated person was first required):5 we consider the position at trial to be (1) in the absence of objection onbehalf of a defendant the existence of any necessary leave or consent toprosecute will be presumed; (2) if no evidence of authority is given and thepoint is raised after the close of the prosecution case leave should ordinarilybe given to prove the authority; (3) if without objection being taken it emergesat trial that there was in fact no authority the point should be allowed and willbe decisive.[14] Further, the Court of Appeal made it clear that any objection from a defendantneeded to be clearly stated:6Any objection should be clearly taken. In the present case we do not think itwas; Mr Young [defence counsel] himself frankly conceded it was putobliquely. It must be taken clearly because the prosecution may wish to applyfor leave to call evidence to cover the matter.5 R v O'Connell [1981] 2 NZLR 192 (CA) at 196.6 At 197.[15] Here Mr Sproull never made any objection about proof of the chain ofdelegation during the trial. We acknowledge that before trial he sent communicationsto WorkSafe which queried the chain of delegation. But raising such queries beforetrial is not the same as objecting at trial to the Inspectors' authority to bring theprosecutions. As this Court recognised in R v Gilchrist, whether there is relevantauthorisation to commence a prosecution does not hinge on the prosecution's pre-trialcommunications with a defendant; rather it is something that is capable of proof attrial.7[16] If Mr Sproull had made the requisite objections during the trial, the likelyoutcome is that in accordance with R v O'Connell, the trial Judge would have givenWorkSafe the opportunity to adduce evidence establishing the Chief Executive'sdelegated authority to appoint the Inspectors. Such evidence clearly exists, as it wasadduced at the first appeal. So, there is no risk the convictions have resulted in amiscarriage of justice through being brought by persons who in law lacked theauthority to take this action.[17] We accept that as a self-represented litigant Mr Sproull may have been unawareof the need to make his objections regarding delegation at trial. But such lack ofknowledge cannot allow him to avoid the legal consequences of failing to take theappropriate step at trial. As we have explained, had he done so the appropriateresponse from the trial Judge would have been to allow WorkSafe to call evidencerelevant to proof of the delegation.[18] WorkSafe's failure to provide Mr Sproull with all information relevant to thedelegation issues (as he had requested in pre-trial disclosure) is a cause of concernbecause, in principle, it could have affected whether a guilty plea was entered or not,which is something that influences sentencing. However, that is an outcome for whichallowance can be made at sentencing. Failure to make pre-trial disclosure ofinformation relevant to the delegation of authority to prosecute is not a basis for7 R v Gilchrist (2006) 22 NZTC 20,043 (CA) at [24]. The decision was delivered prior to theCriminal Procedure Act 2011; however, the principles it identifies remain applicable under thepresent legislation.dismissing an otherwise properly brought and proved prosecution. It follows thatss 25(a) and 27(1) of the New Zealand Bill of Rights Act are not engaged.[19] We acknowledge that matters were not helped here by WorkSafe's error in thememorandum it filed in the District Court stating no delegation issues arose. However,we reject Mr Sproull's arguments that he was entitled to rely on this or any othererroneous statements. Such errors on the part of WorkSafe cannot change the truefactual and legal position of the Inspectors' authority to prosecute. Mander J was rightto find that in the absence of Mr Sproull identifying some defect or other evidence tochallenge the validity of the charge notice, s 74(2) of the Crown Entities Act 2004operated to establish that the charge was laid by a properly authorised officer. Whetherlawful authority to prosecute exists in fact and law is not capable of being influencedby how a prosecution is conducted.[20] The circumstances of this case are fact specific. The outcome does not raiseany matter of general or public importance. The relevant law is well settled. Nomiscarriage of justice has occurred. The argument for Mr Sproull is technical and ifsuccessful would have someone who was prosecuted by those with authority to do soand against whom all other elements of the charge were properly proven escapeconviction because at trial WorkSafe failed to realise delegation of the authority toprosecute was in issue. Such an outcome would be wrong and contrary to justice.[21] For completeness we note that if Mander J had decided not to allow freshevidence on appeal, the appropriate alternative step would have been for him to referthe prosecution back to the District Court for re-hearing. Had this occurred therelevant evidence of delegation would then have been adduced and Mr Sproull wouldstill have been convicted.Result[22] The application for leave to appeal is declined.Solicitors:Bytalus Legal, Auckland for AppellantWorkSafe New Zealand, Auckland for Respondent