CANCIAN v TAURANGA CITY COUNCIL [2023] NZCA 257

CANCIAN v TAURANGA CITY COUNCIL [2023] NZCA 257 [26 June 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA280/2022[2023] NZCA 257BETWEEN DANNY JOHN CANCIANApplicantAND TAURANGA CITY COUNCILRespondentCourt: Clifford, Wylie and Whata JJCounsel: W T Nabney for ApplicantR J A Marchant and S C M Waalkens for RespondentJudgment:(On the papers)26 June 2023 at 11.00 amJUDGMENT OF THE COURTA The extension of time is granted.B The application to adduce fresh evidence is declined.C The application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The applicant, Mr Danny John Cancian, was convicted by Judge Mabey KCfollowing a Judge alone trial in the District Court at Tauranga on three charges broughtby the Tauranga City Council (the Council) under s 40 of the Building Act 2004(the Act) of carrying out building work otherwise than in accordance with a buildingconsent.1[2] Mr Cancian appealed to the High Court. Lang J allowed Mr Cancian'sconviction appeal against one of the charges but upheld the remaining two.2[3] Mr Cancian now seeks leave to bring a second appeal against conviction. Herequires an extension of time. He also seeks leave to adduce further evidence.[4] In a minute dated 27 July 2022 Brown J directed that the issue of leave shouldbe determined separately from the proposed substantive appeal and that the leaveapplication should be decided on the papers.Extension of time[5] Mr Cancian's application is seven working days out of time. The respondentopposes the application. The delay is short. It has been explained as an oversight bycounsel. An extension of time is granted.Leave criteria[6] Pursuant to ss 237 and 253 of the Criminal Procedure Act 2011, this Court maynot grant leave to a second appeal against conviction or sentence unless it satisfiedthat:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.[7] An appeal is unlikely to give rise to an issue of general or public importanceunless it raises an issue of general principle or of general importance in theadministration of the criminal law, including one that has broad application beyond1 Tauranga City Council v Cancian [2020] NZDC 25470 [District Court conviction judgment].2 Cancian v Tauranga City Council [2022] NZHC 556 [High Court conviction judgment].the circumstances of the particular case.3 A miscarriage of justice will arise wherethere has been an "error, irregularity or occurrence in or in relation to the appeal thathas created a real risk that the outcome of the appeal was affected."4Background[8] Mr Cancian was the director and shareholder of a company called Bella VistaHomes Ltd (Bella Vista). Bella Vista acquired land near Tauranga to subdivide andbuild houses. As construction progressed it became known to WorkSafe New Zealand(WorkSafe) and the Council that there were issues with the quality of constructionundertaken. WorkSafe intervened out of concern for the safety of Bella Vista'semployees and, as a result, the Council declared some of the houses under constructionto be dangerous. Construction ceased.[9] The Council subsequently laid charges under s 40 of the Act, relating tobuilding work on eight properties, against not only Mr Cancian, but also his companyBella Vista, and against a Bruce John Cameron and his company, The Engineer Ltd.Both Mr Cancian and Mr Cameron were licensed building practitioners (LBPs) whosupervised and undertook work during the subdivision and construction process andissued records of work (ROWs) from time to time. One charge was laid against eachdefendant in respect of each property. Each charge was then particularised byreference to the large number of ways non-compliant building work was said to haveoccurred. As Judge Mabey noted in his decision, this meant he was effectivelyrequired to reach a decision in relation to 93 charges.5[10] After a six week Judge alone trial in the District Court at Tauranga, Mr Cancianwas convicted by Judge Mabey on one particular charge in respect of three of thoseproperties6 — 297 and 301 Lakes Boulevard and 5 Aneta Way — and fined a total of$60,000.7 The Judge's reserved decision runs to 510 paragraphs and is — as is sooften necessary in this area — intensely factual. The detail in the judgment reflectsthe structure of the charges.3 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].4 Jackson v New Zealand Police [2017] NZCA 374 at [29].5 District Court conviction judgment, above n 1, at [8].6 District Court conviction judgment, above n 1.7 Tauranga City Council v Cancian [2021] NZDC 7606 [District Court sentencing judgment].[11] Mr Cancian appealed his convictions as of right to the High Court. In a carefuland detailed 84 paragraph decision Lang J allowed Mr Cancian's appeal with respectto one of those properties, but dismissed it as regard the other two.8 The Judge did,however, uphold one of the remaining two convictions on a narrower basis than hadbeen the case in the District Court.9 The High Court subsequently reduced the finesimposed on Mr Cancian on those two convictions from $40,000 to $36,000.10[12] We deal first with the application to adduce further evidence, and then the twoapplications for leave to appeal.The evidence application[13] Mr Cancian seeks to introduce Council documents which he says, are germaneto the issue of whether the prosecution brought by the Council was within or withoutapplicable limitation periods.[14] He says the contents of the documents are relevant to the issue of limitation —namely when the Council became aware of defective work. One of the documents, a"PR report" refers to quotes made by a Council officer, Ms McLaughlin, noting defectsin the cladding, and suggesting that there was non-compliance with relevant legalrequirements. Limitation issues were raised in the District Court.11[15] Mr Cancian submits that, had this document been disclosed, the relevantCouncil officer would have been further cross-examined in relation to her degree ofknowledge.[16] The test for the admission of new evidence was set out by the Privy Council inLundy v R:12[120] The Board considers that the proper basis on which admission of freshevidence should be decided is by the application of a sequential series of tests.If the evidence is not credible, it should not be admitted. If it is credible, the8 High Court conviction judgment, above n 2.9 At [36].10 Cancian v Tauranga City Council [2022] NZHC 862 [High Court sentencing judgment].11 District Court conviction judgment, above n 1, at [461]–[508].12 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273. See also Ellis v R [2021] NZSC 77 at [29]–[34].question then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless thecourt is satisfied at that stage that, if admitted, it would have no effect on thesafety of the conviction. If the evidence is credible but not fresh, the courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of a miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis not fresh.[17] We are satisfied this evidence does not meet the criteria for the admission offurther evidence on appeal. The existence of this evidence at trial would not havereasonably altered the outcome of the trial, giving rise to a real risk of a miscarriageof justice.13 There are a number of reasons pertinent to this conclusion. First, thequotations in the reports from the Council officer, identified by Mr Cancian asindicating earlier knowledge of the cladding defects, were taken from buildingcompliance reports which were disclosed, and so the relevant information was knownto the defence at trial. Second, the Council officer was, in fact, cross-examined inrelation to her degree of knowledge. The officer explained she would have hadinsufficient information to form any view of the charge without destructive testing.Any knowledge she had before destructive testing was a mere suspicion as to claddingdefects, and not enough in which to establish the particulars necessary in which tobring a charge. The Judge accepted this evidence his findings:14[501] [Ms McLaughlin] said that was the extent of the cladding defects sheobserved and that she would not be able to tell if there were any further defectswithout destructive testing. That destructive testing was unable to be carriedout because the properties were still owned by the people who had enteredinto contacts with BVHL.[502] The destructive testing which gave rise to the particulars in the chargefor 5 Aneta Way did not occur until June 2019, well within the resultinglimitation period.[503] Mr Nabney submits that in relation to this charge the Council has donewhat was referred to in Auckland Regional Council and has sat back andwaited for evidence to eventuate.[504] However I am not satisfied that the Council, either directly or throughthe agency of Ms McLaughlin, sat on its hands. On the contrary the Councilwas actively pursuing the investigation and in my view did so with diligence.13 Antolik v R [2017] NZCA 576 at [37]–[38] citing Lundy v R, above n 12, at [150].14 District Court conviction judgment, above n 1.[505] The testing carried out by Ms McLaughlin, and which gave rise to theparticulars in the charge was within the limitation period.[506] Nor do I accept Mr Nabney's submission that the proper course wouldhave been for the Council to bring a charge based on Ms McLaughlin's April2018 report and then particularise it by subsequent amendment or variation.That would not be a proper approach to the exercise of prosecutorialdiscretion. To do that would be to proceed on the basis of suspicion which isexactly [what] the authorities say should not occur.[18] Given the above, we are satisfied that defence counsel had ample opportunity,which was taken, to cross-examine Ms McLaughlan on this issue. The existence ofthis report does not alter this factual finding by the trial Judge that the destructivetesting was a necessary condition for the finding of knowledge by Ms McLaughlan asto the charged particulars at the 5 Aneta Way address.[19] It should be further noted that the evidence does not relate to any of the groundsof appeal filed with this Court, or indeed the High Court. The grounds filed with thisCourt did not identify the limitation period as an issue on appeal. There has been noapplication to amend the grounds of appeal. As such, the evidence lacks cogency tothe issues identified in the application for leave to appeal.[20] For completeness, we note that the other two reports which Mr Cancian soughtto adduce also do not meet the criteria for an application to adduce fresh evidence. Itwas not put to us how exactly these reports related materially to the issues subject toa proposed appeal. We are accordingly not satisfied that the relevant criteria is met.297 Lakes Boulevard[21] Mr Cancian's conviction on the charge relating to 297 Lakes Boulevard wasbased, the High Court found, on the undisputed and indeed accepted factual findingthat Mr Cancian was the project manager for 297 Lakes Boulevard. Lang J reasoned:15[23] Mr Cancian accepted he had carried out the function of an LBPcarpentry in relation to some of the properties for which charges had been laid.He disputed he had done so in relation to others. He also disputed theproposition that he had been responsible for supervising the building workcarried out by others. The Judge found Mr Cancian not to be a reliable witnessgenerally and preferred the evidence of other witnesses to that given by him.He found that Mr Cancian held himself out as the LBP carpentry on all sites15 High Court conviction judgment, above n 2, at [23]–[19] (footnotes omitted and emphasis added).and that he performed that function. Mr Cancian does not challenge thisfactual finding on appeal.[24] The Judge also noted, however, that Mr Cancian's assumption ofresponsibility as LBP carpentry on all sites did not mean he had supervisedthe work carried out on every site. In most cases project managers stoodbetween Mr Cancian and those who physically carried out the work. Thosepersons provided the control, direction and oversight required of a supervisor.[25] This was not the case with 297 Lakes Boulevard because, as the Judgeobserved, Mr Cancian accepted he was the project manager for building workcarried out at that address. He was therefore responsible for the direction,control and oversight required of a supervisor. Given this undisputed findingof fact I consider the Judge was correct to conclude Mr Cancian's role asproject manager rendered him liable for the breach of the particular the Judgefound proved in relation to 297 Lakes Boulevard.[22] On a second appeal Mr Cancian wishes to argue in respect of his convictionrelating to 297 Lakes Boulevard that it is not possible for him to be liable under s 40of the Act for having supervised the non-compliant building work particularised in thecharge because another LBP, a Mr Rob Gibson, carried out and/or supervised thatsame building work. Further, it is a matter of general or public importance that thisCourt considers, when work is carried out by a suitably qualified LBP who certifiesthat the work complies with the building consent (and therefore s 40 of the Act),whether a project manager can also be liable for the same non-compliant work.[23] In the High Court, the argument (which Mr Cancian seeks to repeat here) wasmade that Mr Gibson's involvement precluded liability for Mr Cancian. Lang J waswell aware of the involvement of Mr Gibson. The Judge commented:[31] Matters are also complicated by the fact that Mr Robert Gibson,another LBP, acknowledged he had been responsible for supervising theinstallation of the footings at 297 Lakes Boulevard. He also filed an ROW inrelation to that work. Mr Gibson was not challenged on this point and theJudge made no reference to it. It is of course possible for two persons tosupervise and be responsible for the same work even though it is not possiblefor one LBP to supervise another. In the present case, however, Mr Gibson'srole in events further diminishes the Council's ability to rely on the fact thatMr Cancian filed an ROW relating to foundation work at 297 LakesBoulevard.[24] There is, however, no legal basis to question the Judge's observation that twopersons may supervise the same building work. The Act defines supervise in thefollowing way:16supervise, in relation to building work, means provide control or directionand oversight of the building work to an extent that is sufficient to ensure thatthe building work—(a) is performed competently; and(b) complies with the building consent under which it is carried out.[25] The term is of particular significance in subpt 4 of pt 2 of the Act, dealing withrestricted building work. Restricted building work must be carried outor supervised by licensed building practitioners.17 The Act does not support thecontention there may be only one supervisor for particular restricted work. It is enoughto refer to s 87(1) of the Act:(1) Before restricted building work commences under a building consent,the owner must give the building consent authority written notice ofthe name of every licensed building practitioner who—(a) is engaged to carry out, or supervise, the restricted buildingwork under the building consent; and(b) was not stated in the application for the building consentunder section 45(1)(e).[26] The very clear implication is of a number of LBPs supervising restrictedbuilding work in any one building project. Where more than one LBP has undertakensupervisory work on a building project then, the question as to which one or more ofthem who should be looked to as regards responsibility for particular restrictedbuilding work, would appear to be essentially a question of fact. The issue arose inthe District Court in that context, and was dealt with in that way as the passages wehave cited above reflect. Mr Cancian's culpability arose as a result of his role asproject manager of the site. Mr Gibson's involvement, as recognised by Lang J, didnot affect that factual finding.16 Building Act 2004, s 7(1).17 Building Act, s 84.[27] We are satisfied that this ground of appeal does not meet the criteria for a grantof leave.[28] Leave for a second appeal against the 297 Lakes Boulevard conviction isdeclined.5 Aneta Way[29] Mr Cancian seeks to bring a second appeal on the same evidential basis arguedunsuccessfully in the High Court. He submits that that there has been a miscarriageof justice because the manufacturers specifications (the Claymark specifications)considered at trial did not exist at the time of the offending.[30] There is nothing to suggest the decision of the High Court was in error orotherwise risked a miscarriage of justice. Lang J in the High Court was aware of andconsidered the significance of the fact that the Claymark specifications did not existat the time of trial. He found that "[a]lthough the Judge referred to the Claymarkspecifications it is clear that he did not base his findings in relation to the particularsof this charge solely on any failure to follow the manufacturer's specifications."18[31] This conclusion was plainly available to the High Court Judge. For exampleThe District Court Judge found that particular (f) — that the incorrect nails were used— was established without any reference to the Claymark specifications, but insteadon the basis of a breach of the New Zealand Building Code 1992, which was alsoincorporated into the resource consent.19 The Judge also found the other particulars,(a)–(e), were established without sole reliance on the Claymark specifications.20[32] Leave to appeal the 5 Aneta Way conviction is also declined.Result[33] The extension of time is granted.18 High Court conviction judgment, above n 2, at [43].19 District Court conviction judgment, above n 1, at [454]–[458].20 At [429]–[453].[34] The application to adduce fresh evidence is declined.[35] The application for leave to bring a second appeal is declined.Solicitors:Rice Spier, Tauranga for Respondent