MINISTRY OF FISHERIES V DISTRICT COURT AT CHRISTCHURCH AND ORS HC CHCH CIV-2007-409-002390

MINISTRY OF FISHERIES V DISTRICT COURT AT CHRISTCHURCH AND ORS HC CHCH CIV-2007- 409-002390 17 October 2007IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2007-409-002390IN THE MATTER OF an Application for Judicial Review AND IN THE MATTER OF section 4 of the Judicature Amendment Act 1972 BETWEEN MINISTRY OF FISHERIES Applicant AND DISTRICT COURT AT CHRISTCHURCH First Respondent AND JOZEF EUGENIUSZ POPOWICZ Second Respondent AND JANUSZ MIROSLAW JOZEFIAK Third Respondent AND WLODZIMERZ PIERZCHLINSKI Fourth Respondent Hearing: 17 October 2007 Appearances: C J Lange & D Jackson for Crown FMR Cooke QC for Respondents Judgment: 17 October 2007ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN[1] The applicant seeks to judicially review the decision of His Honour Judge Moran given in the Christchurch District Court on 25 September 2007. [2] On that date the Judge refused the applicant's application that 13 witnesses, all being Polish fishermen, give evidence pursuant to s32 of the Summary Proceedings Act before they leave New Zealand.[3] The matter was urgent before the District Court. It is now more urgent, as five of the 13 are due to leave New Zealand tomorrow and the other eight are to leave on 26 October. It is possible, however, in relation to that eight that there may be some extension available. [4] The first respondent abides the decision of the District Court. The second, third and fourth respondents oppose the application seeking the quashing of the order of the Court below and a remitting of the matter for a further urgent hearing in relation to the taking of the evidence. [5] The respondents respectively are the master, factory manager and factory foreman of a fishing vessel known as the Atria. The proposed witnesses were all crewing on that vessel. [6] It is alleged that between 19 May and 18 July 2007 when this vessel was targeting hoki in fishing areas 3 and 4, adjacent to the Chatham Islands, that fish were illegally dumped. Mr Popowicz faces two charges: that between 19 May 2007 and 18 July 2007 he did "procure, aid or abet a commercial fisher to return or abandon in the sea fish for which no legal size is set that is subject to the quota management system, namely hoki", in breach of ss72(1) and (4) and s239 of the Fisheries Act 1996; and that on or about 28 June 2007 he did "procure aid or abet a commercial fisher to return or abandon in the sea fish for which no legal size is set that is subject to the quota management system, namely hoki", in breach of ss72(1) and (4) and s239 of the Fisheries Act 1996. [7] Mr Pierzchlinski faces two charges: that between 19 May 2007 and 18 July 2007 he together with Mr Jozefiak did "procure, aid or abet a commercial fisher to return or abandon in the sea fish for which no legal size is set that is subject to the quota management system, namely hoki", in breach of ss72(1) and (4) and s239 of the Fisheries Act 1996; and that on or about 28 June 2007 he did "procure aid or abet a commercial fisher to return or abandon in the sea fish for which no legal size is set that is subject to the quota management system, namely hoki", in breach of ss72(1) and (4) and s239 of the Fisheries Act 1996.[8] Mr Jozefiak faces one charge: that between 19 May 2007 and 18 July 2007 he together with Mr Pierzchlinski did "procure, aid or abet a commercial fisher to return or abandon in the sea fish for which no legal size is set that is subject to the quota management system, namely hoki", in breach of ss72(1) and (4) and s239 of the Fisheries Act 1996. [9] Eight of the witnesses concerned are said to be able to give direct evidence of the dumping. The other five are said to be able to give circumstantial evidence to support the allegations. [10] Essentially the Crown case is that green hoki was dumped because the catch rate was so high the processing equipment on the factory within this vessel was incapable of processing it. [11] The Judge considered the matter, noted correctly that all the witnesses were to leave New Zealand, and then proceeded to carry out the necessary balancing act under the section by referring to various rights guaranteed to persons charged with offences under the New Zealand Bill of Rights Act 1990. Effectively, his conclusion was that the adverse impact upon the respondents was such that the evidence should not be taken before they returned to Poland. [12] It is submitted on behalf of the applicant that the sole issue for the District Court was whether it was desirable or expedient that the evidence be taken. However Mr Lange, for the Crown, accepts that any decision under the section requires a balancing act, and that such balancing is informed by rights guaranteed by the New Zealand Bill of Rights Act. He says the Judge has erred because firstly he failed to specify or consider what would be a reasonable timeframe in which to have these witnesses give that evidence. Secondly, he says that the Judge confused the right of the respondents to call witnesses on the same terms as the Crown with whether or not they would actually call those witnesses. Mr Lange further submits that fair trial rights should properly be considered at trial and not as part of the process.[13] On behalf of the respondents, Mr Cooke submits that the Judge's decision was one that was available to him in the exercise of his discretionary power, and applying well settled judicial review principles there was nothing done by the Judge that would allow this Court to interfere. He further submitted, as the Crown accepted, that the rights set out in the New Zealand Bill of Rights Act were key to the balancing exercise the District Court Judge was required to undertake. He submitted that the Judge's decision was ultimately influenced by two related factors. Firstly, whether the granting of the application would compromise the respondents' ability to respond and defend the charges, in particular in the context of had there been adequate time and facilities to prepare for the cross-examination of key witnesses. Secondly, whether the granting was inconsistent with the "equality of arms" concept given the prospective need for the defendants and their potential witnesses to return to New Zealand from Poland. [14] He submitted that the Judge made findings that were open to him given the matters identified by the Judge at [7] and [8] of his decision. Firstly, a significant credibility contest in relation to key witnesses. Secondly, the necessity for the defence to pursue certain lines of inquiry before they would be in a position to meaningfully cross-examine, and I note in passing that Mr Lange accepted that any cross-examination had to be meaningful. Thirdly, that the only witnesses to-date are the Polish witnesses, and that the Ministry's investigation at the present time is ongoing and it is not yet fully clear what case the respondents will face. [15] Mr Lange, in relation to the matters that needed to be explored to enable meaningful cross-examination, submitted that some of the complex issues raised by Mr Cooke were irrelevant and that the issues raised by the evidence of these witnesses is such that in a four-week period, which he submitted would be reasonable for preparation, the respondents would be in a position to carry out worthwhile cross-examination. [16] In relation to [8] and the equality of arms, Mr Lange submitted that the difficulty confronting the Ministry was that they could not "crystal ball gaze" and know what situation they would be faced with in 18 months as to the availability of witnesses. Mr Cooke responded by saying realistically the respondents face thesame position as all the crew members are Polish nationals and in mounting a proper defence the respondents face effectively the same difficulties. [17] Finally the respondents submit that the rights guaranteed under the relevant sections of the New Zealand Bill of Rights Act apply during the course of criminal proceedings and are not limited to trial. Mr Cooke submitted that the relevant time to apply the Bill of Rights protection is when the Court is being asked to apply a relevant statutory power. He submitted the authorities show the procedures that infringe the Bill of Rights are not addressed only at trial, a fact that the Crown ultimately accepted. [18] While I accept the difficulties facing the Ministry in this case, and the Ministry's concerns of the wider implications of this matter, as the Crown responsibly accepted, I can only decide this matter on the basis of the Judge's decision and what is raised in this particular case. There is no way, nor would it be proper, to attempt to approach wider policy concerns in the context of this case. [19] The approach to applications of this sort is succinctly summarised in a case referred to by Mr Cooke, A Medical Practitioner v The District Court at New Plymouth & Anor HC NP CIV-2005-443-000437 3 November 2005, Heath J. For this Court to interfere with the decision under review it must be shown that the Judge:♦ made an error of law;♦ failed to take account of relevant factors in exercising his discretion;♦ took into account irrelevant factors in exercising his discretion; or,♦ made a decision to which no reasonable Judge could properly have come. [20] Both counsel referred me to a number of authorities relating to the application of the rights under the Bill of Rights Act, in particular citing passagesfrom R v B [1995] 3 NZLR 577. In the context of this matter I am not sure it would be necessary to address them specifically. [21] The Judge in this case was clearly conscious that a number of the witnesses involved had been granted a limited purposes permit to remain in New Zealand for up to four weeks. While I accept Mr Lange's submission that there is nothing in the judgment to show the Judge specifically turned his mind to what would be a reasonable time to enable the respondents to prepare to cross-examine these witnesses, in my view it is a necessary inference from what is stated at [2] that the Judge was well aware he was dealing with a four-week timeframe. [22] It seems to me the Judge has properly considered the relevant Bill of Rights matters contained in ss24 and 25 of the Act, in particular the right to properly and in detail be informed of the nature and cause of the charge; the right to adequate time and facilities to prepare a defence; the right to be present at trial to present a defence; the right to examine the witnesses for the prosecution; and the right to have the free assistance of an interpreter. [23] In my view the Judge has correctly identified those rights. He has carried out a balancing act. At [7] he recognises that there is more to preparing an effective cross-examination than simply ascertaining what the three respondents and other crewmen have to say about the allegations. He recognises a degree of analysis of returns and other matters would be required to see if they reveal consistency or inconsistency of allegations. He recognised the difficulty confronting the gathering of information because none of the crew speaks English. He recognised the need for some technical evidence concerning the layout of the ship and its operations. Importantly he recognised that truth and reliability was not to be assumed, noting that the allegations came from disaffected crew members who may have some purpose to serve in condemning the respondents. At [8] he noted the position that still applies, that the evidence of the crewmen comprises most, if not all, of the prosecution case. No doubt that is likely to change, but that remains the position as of today.[24] He went on to say that securing the prosecution's evidence pre-trial to obviate risk, inconvenience and expense could give the prosecution an advantage the defendants may not enjoy in relation to defence witnesses to be called from Poland. He said that the right for the defendants to make application under s32 was not a complete answer. More importantly, he stated at this early stage of the proceedings the defendants are not to know just what evidence they might wish to call to answer the charges. Indeed, the whole matter was in a somewhat embryonic stage and the complete case was not necessarily apparent to the respondents. [25] While some discovery has been made, there is discovery yet to be completed. The Judge was entitled to take the view that would impact upon the ability to cross- examine these particular witnesses. While the Ministry takes the view that the cross- examination of the witnesses is a relatively simple and straightforward exercise, the Judge had information before him that entitled him to his view that gathering information would not be easy, and that technical evidence would need to be investigated properly before meaningful cross-examination should be carried out. [26] Whether it is quite as extensive as Mr Cooke submitted this morning is not totally clear at this stage, but it seems to me that investigations into the capability of the processing plant on this ship would enable the cross-examiner to undertake a perfectly proper line of inquiry that the allegations the fish were dumped because of lack of processing capacity was inconsistent with the records and the actual processing capacity of the equipment. In my view, to suggest that the cross- examination would simply be limited to what the witnesses say they saw is overly simplistic. [27] At the end of the day I am not satisfied there is any error of law by the Judge. It was perfectly proper for him to take into account Bill of Rights concerns at this juncture and apply them to this application of a statutory power. There is nothing to indicate he took into account irrelevant evidence, or failed to take into account relevant evidence, nor can his decision be said to be plainly wrong. I do not accept that he did not address the time issue which was central to the Crown's submissions today. He clearly had that in his mind and was well aware of the timeframe that these people would remain in New Zealand. While I may well have come to adifferent conclusion personally in relation to this matter, I cannot say the grounds for judicial review have been made out on the basis of the authority referred to earlier, and it follows the application must be dismissed. [28] There is an application by the respondents for costs, with Mr Cooke submitting that given the urgency of the matter and the content a 3C basis was appropriate. For the Crown it is submitted that while accepting the urgency with which the matter was brought on, they say it was really a re-run of the lower Court matter and 2B would be appropriate. I think something slightly more than 2B is appropriate. I will award costs to the respondent on a 2C basis together with disbursements to be fixed by the Registrar but to include reasonable travel and accommodation expenses.Solicitors: Crown Solicitors, Christchurch Thorndon Chambers, Wellington